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TMI Blog2003 (11) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal No. 4/93, dated 19-7-93 had held the pipes as excisable and classified the same under sub-heading 7305.90 of the Schedule to the Central Excise Tariff Act; that the matter was remanded by the Tribunal, vide Final Order No. E/125/95-B1, dated 23-3-1995 to examine whether the pipes manufactured by them were prepared for use in structure i.e. whether they could be classified as parts of structure and whether the pipes can be said to be "goods" i.e. whether they are marketable and are known in the trade as pipes. 2.2The ld. Joint C.D.R., further, mentioned that the remand proceedings, the Deputy Commissioner, under Order-in-Original No. 19/2003, dated 26-7-2001 has decided both the issues by holding that the network of conduits where the pipes have been used cannot be said to be structures; that as per Explanatory Notes of H.S.N., "structure" is something whose main purpose is to bear some load; that the pipes in the present matter have not been designed to help in the carriage of any load as their main purpose is to convey/carry water/steam; that the Deputy Commissioner has further given the finding that impugned pipes are capable of being marketed, that as the pipes come into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, testing and commissioning hangers and support out of pipes and tubes prepared out of duty paid materials as per specifications; that there was no manufacture of pipes and tubes as the process of work related to parts of the structures which were fabricated at site and attached with earth as permanent fixtures; that accordingly the impugned goods are classifiable under Heading 73.08 as structures; that the photographs of different segments viz. (a) Raw water connection to C.W. Duet, (b) Rolling of plate of preparation of bed, (c) Raw water outlet from Raw water pump house, (d) Rolling of sheets BCW Pumps House outlet Raw water connection to duplex fitter, etc., clearly show that small segments of tubular form of sheets welded and joined together are the parts of the power plant; that further some of such segments are brought down to 4 mts. deep pit and were joined with pre-laid pipe line with welding; that the impugned goods made as per requirement and design are neither known in the market as pipes and tubes nor they ordinarily come to the market for being bought and sold as pipes and tubes. He also mentioned that as per Para 5(i) of Section 37B Order, the Turn Key Projects l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er there is emergence of goods, as known in the market for the purpose of exigibility or they are mere fitments which because part of movable property. Both the authorities have not examined these aspect in the light of drawings, manufacturing process and as to how the said pipes are known in the trade. It is also required to be examined as to whether these pipes have been 'prepared for use in structures'. If so then the claim for classification under Chapter Heading 7308 is required to be considered. As there is lack of factual information, the case, as noted by us, therefore, it is just and proper to remand this case to the original authorities for de novo consideration, in the light of the observations made by us by giving full opportunity to the appellants to place their evidence, on the points indicated by us. The original authority shall decide the case as per the law in the light of the evidence and Supreme Court relied by the appellants, after giving due hearing to the appellants." 6.A perusal of the remand order reveals that the Tribunal had remanded the matter to ascertain as how the pipes had emerged and whether the pipes were known in the market as pipes and whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y notes further mentions that the product of this heading "includes line pipes of a kind used for oil or gas, casings for oil or gas wells, tubes for long distance waterlines or slurry mains for coal or other solid materials, tubes for piling or structural columns, as well as hydroelectric conduits, usually reinforced with rings." It is thus apparent that pipes used for structural columns remain classified under Heading 73.05. Heading 73.08 applies to structures and parts of structures; merely because these pipes are used in the fabrication of plants does not make their structurals. If the contention of the respondents is accepted, then every pipe line which is laid underground will be considered as part of the structurals and not the pipe lines. The Appellate Tribunal has considered the question as to whether the pipes are excisable goods in the case of M/s. J.S.T. Engineering Services v. C.C.E., Jsr. reported in 2001 (133) E.L.T. 350 (T) = 2001 (46) RLT 1 (CEGAT-Del.) relied upon by the ld. Advocate for the respondents. The Tribunal has held in the said decision that the steel plates after being cut to required size, are fed to bending machine from where these come out in bent po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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