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TMI Blog2019 (5) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... n mind the specific requirements of Krishnapatnam Port. Also, Revenue has not produced any evidence to even indicate that this kolas are be used at some other port. Demand cannot sustain - appeal dismissed - decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Board of Trustees Vs. CCE, Andhra Pradesh [2007 (216) ELT 513]. Revenue preferred an appeal against such an order before the First Appellate Authority. The First Appellate Authority also after following due process of law, upheld the Order-in-Original hence this appeal by the revenue. 3. Learned Departmental Representative after giving the bench overall picture of the issue involved, submits that the First Appellate Authority has erred in not noticing the fact that the kolos are marketable as the contract awarded to appellant as a EPC contract wherein kolos are used for Breakwaters and hence are marketable; Commissioner (Appeals) were in error in holding that kolos are Breakwater in Krishnapatnam Port only but has forgotten to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act for construction of port at Krishnapatnam Port and the entire EPC contract included construction of Breakwaters in order to make the water still and come in the port area for which they produced the said kolos. It is also undisputed that this kolas were manufactured keeping in mind the specific requirements of Krishnapatnam Port. On this factual matrix, we find that the First Appellate Authority in the impugned order has given a detailed finding which we concur with. The same are reproduced: 5. I have gone through the facts of the case, Review Order and the Respondent's contentions. I agree with the contentions made by the Respondents. Case laws relied upon by the appellants are already discussed and distinguished in the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns available, they are so specific in the sense that at no other place these 'Kolos' can be sold or suitable for sale as the conditions prevalent at other place will be entirely different from the place of port for which they are made. As per the Brief Specification of Civil Works in Phase-I Development of Krishnapatnam Port available in the file, apart from creating Berths, Dredging and reclamation and Warehouses and other misc. buildings, Break Waters is one of the activity to be done. For creating Break waters, tidal levels are specified as follows: Chart Datum (CD) = +/- 0.00 M MSL = +0.8M MHWS = +1.2M MHWN = +1.0M MLWN = +0.7M MLWS = +0.5M Further, it is mentioned in the Specification that "in order to achieve a tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1 to 2 T rock (S.B/W) Primary Armour layer of accropode - 1.5 cu.rn. (N.B/W) 6.3 cu.m. (S.B/W) Stone Armour - 0.7 T to 1.2T Top Width - 5.33 m to 6.6 m for N.B/W 5.33 m to 7.67 m for S.B/W Top of B/W + 5.2 MCD to 5.5 MCD for N. B/W +6.6 MCD to +6.9 MCD for S.B/W Side slope - Rock mound = 1:2 - Accropode = 1:1.33" As could be seen from the above, the armour blocks i.e. "Kolos" are developed by the Respondents for specific use in that specified port and these are not 'Marketable' commodities as contended by the appellants. Further, as could be seen from the above, 13355 Nos. of Kolos of different sues as quantified in the show cause notice are not manufactured based on any such requirement clause in the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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