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TMI Blog2005 (8) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... 94.06 of the Central Excise Tariff Act, 1985 which covers 'prefabricated buildings'. As per Note 4 to Chapter 94, 'prefabricated buildings' means buildings which are finished in the factory or put up as elements, cleared together, to be assembled on site, such as housing or work site accommodation, offices, schools, shops, sheds, garages, or similar buildings. (b) The department find the proper classification as under Chapter Heading 39.25 which is reproduced below. 39.25 Builders' ware of plastics, not elsewhere specified or included. 3925.10 - Reservoirs, tanks, vats similar containers of a capacity exceeding 300 ltrs 3925.20 - Doors, windows their frames thresholds for doors 3925.30 - Shutters, blinds (including Venetian blinds) and similar articles and parts thereof - Other : 3925.91 - Of polyurethanes 3925.99 - Other 2.2 Process of manufacture admitted and relevant is recorded as - (a) The appellants had a technical collaboration with M/s. Isowall Holdings, U.K. world leaders in prefa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edetermined thickness and length and in numbers in the machine itself. The required roof panels are also made ready in the machine. The doors and windows, wherever required are made ready in the factory workshop. Thereafter panels for roof, walls, doors, and windows along with required flashing i.e. ancillaries such as channels, corner angles are dispatched in the vehicle for assembly at the site. As the panels are in completely knocked down condition, assembly of the panels at the site is very easy. Panels for floor (wherever required) wall, roof, windows, doors and ancillaries such as channels and corner angles are fixed at the site. (b) The prefab buildings made by the appellants are, inter alia, as under : (i) Telephone booths (ii) Mobile phone transmitter cabins (iii) Portable cabins (iv) Work site accommodation (v) Factory building (vi) Cold storage building. 2.4 Purchase orders placed by customers and marketing is (a) The appellants have their factory at New Mumbai, Maharashtra and branches at Mumbai, Ahmedabad, Delhi, Coimbatore, Bangalore, Chennai, Cochin, Hyderabad Visakhapatnam. (b) The customers req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 1998 1963838 8 1-4-2002 Mar. 2001 to Aug. 2001 2617211 9 8-10-2002 Sept. 2001 to Feb. 2002 2789420 10 4-4-2003 Mar. 2002 to Dec. 2002 3671444 11 6-2-2004 Jan. 2003 to Oct. 2003 4474410 SUB TOTAL 33081580 LESS : SCN dtd. 5-9-2001 (Sr. No. 6.2 supra) - duplication 3877064 TOTAL 29204516 As per these notices, the panels consist of a core of expanded polystyrene falling under Chapter 39 which is bonded between two layers of metal. As per these notices, panels consist of 98% of expanded Polystyrene and hence insulation property given by expanded Polystyrene gives essential character to the panels. Therefore the same are classifiable under Chapter Heading 39.25 and not under Chapter Heading 94.06. The show cause notice mentioned at Sl. No. 7 in the table supra invoked larger period under proviso to Section 11A. 2.6 The appellants contended, that they clear prefabricated building in unassembled condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 without any material to support the same. (iv) Notice dated 5-9-2001 however goes by weight constitution and alleges essential character to be from the 'sheet of steel' to call for classification under 73.08.10 for the period August 2000 to February 2001 for which notice dated 3-9-2001 for the same period alleges the same valued quantity of goods to be under 39.25. (b) Commissioner however in the impugned order finds records as follows - In the SCN dated 5-9-2001 mentioned at sr. no (vi)(b) the goods for the same period proposed to be classified under 73.08 against assessee's claim under 94.06. In this SCN dept. has not brought on record any additional evidences either by way of documents or statements for the proposed classification under 73.08. In this SCN dept. has merely alleged the cost of steel and weight of steel vis-a-vis that of experience polystyrene in the product. I find that the assessee vide their first reply dated 9-1-1999 had informed all these details. Department has not brought on record any evidence for classification of the product under 73.08 overriding proposed classification under 39.25 of the same product for the same period. This SCN da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal as arrived or and the classification under 39.25. (d) The notice dated 29-11-2001 demanding duty for the period November 96 to April 98 is barred by limitation as we find no case or cause for suppression to have been established. In fact in arriving at a finding as regards SCN dated 5-9-2001 the Commissioner accepts that declaration were correctly made by the appellants vide reply dated 1-9-1999. (e) Since the essential characteristics of the panels are not emerging or based, on article of Chapter 39 in this case viz. polystyrene, as also proposed in show cause notice issued on 5-9-2001 brought out by reasons, were fact of declaring the metal sheets to be laminated with Polystyrene in Modvat declaration that will not call for determining essential characteristics of the panel to be of Plastic falling under Chapter 39. There is no material on record to come to such a conclusion. The classification under Chapter Heading 39.25 following the decision of CCE v. Blue Star Ltd. [2004 (172) E.L.T. 461] therefore cannot be upheld in this case. (f) Once the classification as arrived by the lower authority is not to be upheld, the duty penalty demand on to be set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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