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TMI Blog2023 (8) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... such invoices or bills which have been seized and used to derive the quantum of duty. It is also pointed out by the learned counsel that during the relevant period there was circular issued by the Board which explained that certain fabrications done at the customer site and embedded to the earth are not excisable goods and therefore not exigible to duty. The appellant has produced the copies of letters dt. 30.03.2011, 24.06.2011 and 23.12.2013. The appellant has not been supplied with necessary documents. In such circumstances, the matter requires to be remanded to the adjudicating authority who is directed to furnish the relied upon document to the appellant and also give an opportunity of hearing to the appellant with sufficient chance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to evade payment of duty. Show cause notice dt. 22.10.2010 was issued for the period 2005-06 to 2007-08 proposing to demand the duty along with interest and for imposing penalties. After due process of law, the original authority confirmed the demand along with interest and imposed equal penalty besides imposing penalty under Rule 25 of Central Excise Rules, 2002. Aggrieved by such order, the appellant is now before the Tribunal. 2. The Ld. Counsel Sri S. Venkatachalam appeared and argued for the appellant. It is submitted by the learned counsel that after receiving the show cause notice on 04.03.2011, the appellant had requested the department to supply all the relied upon documents in order to facilitate the appellant to file reply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case for the reason that appellant has done most of the fabrication work at the site of the customer. It is settled law that an item embedded on earth cannot be called as excisable goods and accordingly no duty is required to be paid on the same. The drawings / photographs of the items would make it clear that the fabricated items are embedded to earth and are not excisable goods. The items are customer and location specific and it cannot be marketed and is of no use to any other person. 4. The department has to prove the marketability of the goods to demand excise duty. There are several decisions which have held that the steel structures which are part of permanent civil construction and are not designed as goods, are not leviable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Notice No.63/2010-CHZU dated 22-12-2010 in F. No. INV/DGCEI/CHZU/09/10/CE issued by the Additional Director General, Directorate General of Central Excise, Tirunelveli Commissionerate, with the photo copies of records relied upon as listed in the Annexure-A to the said Show Cause Notice today i.e. On. For SRI SARASWATHI PROPERLLER WORKS Sd/- PROPRIETOR 4/3/2011 9. It can be seen from the above acknowledgement that the appellant has received only documents listed in Annexure-A. The details of the invoices / bills on which the quantification of the duty is done is contained in Annexure-B. The Department ought to have given the copies of such invoices or bills which have been seized and used to derive the quant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adurai 14 Addressed to the Commissioner of Central Excise, Tirunelveli 7, dtd. on 24-06-2011. But, we have not received the relied upon documents even today. As we indent to file Appeal against the Commissioner Order in honourable Tribunal, we require the relied upon documents urgently. 10. On going through the facts and records, we find that the appellant has not been supplied with necessary documents. In such circumstances, the matter requires to be remanded to the adjudicating authority who is directed to furnish the relied upon document to the appellant and also give an opportunity of hearing to the appellant with sufficient chance for adducing any further evidence. 11. In the result, the impugned order is set aside. Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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