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TMI Blog2002 (12) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... iwadi factory on payment of duty and are received at AAP's Godown at Gurgaon/storage space provided by the building owner at site; that sub-contractors are engaged for the execution of the work; that the contractors first install window/door frames by embedding them in the walls and thereafter on alignment window/door leaves, these are attached to the frames and lock, handles screws glass sheets, procured from market are fixed to the windows/doors. 2.2 He, further, mentioned that the Commissioner under the impugned Order, has confirmed the demand of duty and imposed penalty on the ground that the processes carried out in the basement of the site by the Appellants amounts to manufacture and the extended period of limitation for demanding Central Excise duty is invokable as the fact of manufacture was suppressed from the Department with a view to evade payment of duty. 3.1 The learned Advocate submitted that they enter into contracts for design, supply and erection and installation of openable as well as sliding type aluminium doors and windows; that doors and windows are designed for each building by the architect to impart a distinctive look to the building; that based on the siz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (120) E.L.T. 273 (S.C.) has held that "The marketability test requires that the goods as such should be in a position to be taken to the market and sold."; that the Supreme Court in this case found that installation or erection of Turbo Alternator on the concrete base cannot be treated as a common base and it would be immovable property and can not be excisable goods. He thus submitted that in the present matter where the products come into existence as doors, windows and Curtain Wall only on erection/installation on the walls, these are immovable property and as such are not excisable goods. Reliance has also been placed on the following decisions. (i) Tata Engg. & Locomotive Co. Ltd. v. Union of India, 1997 (89) E.L.T. 463 (Bom.) (ii) Tata Robins Fraser Ltd. v. CCE, 1990 (46) E.L.T. 562 (T) (iii) Vindhya Paper Mills Ltd. v. Commissioner of Central Excise, Aurangabad, 1998 (97) E.L.T. 298 (iv) CCE, Nagpur v. Wainganga Sahkari S. Karkhana Ltd., 2002 (142) E.L.T. 12 (S.C.) wherein it has been held by the Supreme Court that where the assessee is erecting the structures at the construction site and fabricating materials on the spot, it cannot be considered to be fabrication in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue has to be re-worked after deducting the installations charges, profit and permissible deductions under section 4 of the Central Excise Act; that they would be entitled to avail of Modvat Credit in case the products are held to be liable to excise duty. 4.3. The learned Advocate mentioned that the Adjudicating Authority erred in relying on the statement dated 20-2-2001 of Shri S.C. Marwah by distorting the facts and not reading the statement as a whole; that the affidavit given by Shri Marwah has clarified that the actual work of assembly/erection of doors, windows and curtain walls came into existence on the walls of the respective floors; that even in his statement Shri Marwah had clearly deposed that the aluminium extrusions/sections/channels were cut to size and assembled to make frames at Bhiwadi factory and cleared on payment of duty; that affidavit given by him cannot be ignored; that the Adjudicating Authority has also rejected the affidavits of Shri D.N. Pandey and Shri Sandeep Upadhyay, Project Managers. He relied upon the decision in the case of Kulbhushan Jain v. Commissioner of Customs, Delhi, 1999 (111) E.L.T. 906 (T). 4.4. The learned Advocate also submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shutters, thresholds with doors/window frames and aligning them, cut glass sheets into required size of the shutters, cut aluminium channels to make beading for fixing of glass; that slots are cut, hinges are fixed and the two frames are assembled; that alignment/adjustment of frame with shutters is done in the basement. The learned Senior Departmental Representative contended that it is thus apparent from the statement of Shri Marwah that the basement at the site area was not only a storage place but also used for carrying out the activity which amounts to manufacture. The learned Senior Departmental Representative also referred to their letter dated 14-2-2000 addressed to the Superintendent, Central Excise, Bhiwadi wherein the Appellants have themselves mentioned that "the doors, windows and partition of structures come into existence at the site while it is permanently attached to the constructed building." She also referred to one of the contract (at page 141 of the paper book) wherein it is stipulated that the Contractor, that is the Appellants, shall not sub-let the whole of the work; that on the other hand their contract with job worker at Page 561 of the Paper Book awarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods" an article must be something which can ordinarily come to the market to be bought and sold." In the present matter the Revenue has demanded Central Excise duty on Aluminium doors and windows on the ground that the same are assembled at the basement of site provided by their customers. The Revenue has reached this finding on the basis of statements of various employees of the Appellants, including statement of Shri Marwah, General Manager (Project). On the other hand, the Appellants have contended that basement is used for storing of various materials procured from market on payment of duty and frames of door and windows and other materials received from their factory at Bhiwadi on payment of duty. According to the Appellants first the frames of doors and windows are embedded into the openings made in the wall and thereafter door/window leaves are attached to these frames and thereafter lock, handle, screws, glass sheets, etc. are fixed to the windows and doors. The Appellants have contended that as such complete door/window comes into existence only as part of the building and these cannot be removed as such for being brought to market for the purpose of being bought and sol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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