Custom, Excise & Service Tax Tribunal
M/S.Apm Infrastructure (P) Ltd vs Cce, Rohtak on 28 April, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, PRINCIPAL BENCH NEW DELHI, COURT NO. 1
Date of Hearing/Decision: 28.04.2014
For approval and signature:
Honble Mr. Justice G. Raghuram, President
Honble Mr. Rakesh Kumar, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
Excise Stay Application No.59070/2013 and
Appeal No. E/58445/2013-EX(DB)
[Arising out of Order-in-Appeal No.91/CE/D-II/13 dated 16.04.2013 passed by the Commissioner of Central Excise (Appeals), Delhi-II].
M/s.APM Infrastructure (P) Ltd. Appellant
Vs.
CCE, Rohtak Respondent
Appearance:
Rep. by Shri Amit Jain, Advocate for the appellant. Rep. by Shri Jayant Sahai, DR for the respondent. CORAM :
Honble Mr. Justice G. Raghuram, President Hon'ble Mr. Rakesh Kumar, Member (Technical) Final Order Nol.52326/2014 Rakesh Kumar:
The facts leading to filing of this appeal and stay application are, in brief, as under:-
1.1 The appellant are engaged in the manufacture of Curved Steel Roof Panels chargeable to central excise duty under Chapter Heading No.73089090 of the Central Excise Tariff. On receiving an information that the Appellant have manufactured curved steel roof panels in the factory premises of M/s Hindustan Tin Works, Sonepat, the jurisdictional central excise officers visited the factory on 12.1.2009 for ascertaining the facts. During the visit, it was found that the appellant had manufactured Curved Steel Roofs from Coated Steel Sheets in the said premises. Since no excise duty had been paid by them in respect of the manufacture of the Curved Steel Roofs panels which were chargeable to duty under sub-heading no.73089090 of the Central Excise Tariff, a show cause notice dated 21.12.2009 was issued to the appellant for demand of central excise duty amounting to Rs.6,67,445/- along with interest thereon under Section 11 AB and also for imposition of penalty under Section 11 AC of the Central Excise, 1944.The above show cause notice was adjudicated by the Addl. Commissioner vide order-in-original dated 20.01.2011 by which, he dropped the proceedings against the Appellant on the ground that the Appellant had manufactured Curved Steel Roof Panels at the factory premises of M/s. Hindustan Tin Works Ltd. for installation in the factory, and that the goods are fully exempt from duty under Notification No.3/2005-CE, which exempts the goods specified in this notification to the extent as mentioned in it, when the same have been fabricated at site for use in construction work at such site. This order of the Addl. Commissioner was reviewed by the Commissioner and the Addl. Commissioner was directed to file a review appeal before the Commissioner (Appeals) on the grounds mentioned in the Review order issued under Section 35 E(2) of the Central Excise Act, 1944. The Commissioner (Appeals) vide order-in-appeal dated 16.4.2013 allowed the appeal holding that Curved Steel Roof Panels manufactured by the appellants in the factory of the Hindustan Tin Works Ltd. are not classifiable under Heading No.7308 but are classifiable under Heading no.7210 of the Tariff and hence, the same are not eligible for exemption under notification no.3/2005-CE. Against this order of the Commissioner (Appeals), this appeal has been filed along with stay application.
2. Though this matter was listed for hearing of only the stay application, after hearing this matter for sometime, the Bench was of the view that the appeal itself can be taken up for final disposal as only a short issue regarding classification of the goods is involved. Accordingly, with the consent of both the sides, the matter was heard for final disposal.
3. Shri Amit Jain, Advocate, ld. Counsel for the appellant, pleaded that the appellant had fabricated Curved Steel Roof Panels in the factory of M/s. Hindustan Tin Works Ltd. for being installed in that factory, that the raw material for Curved Steel Roof Panels is steel coils, which are brought to the site and are processed by machines as a result of which the steel sheets get corrugated, that, thereafter, the corrugated steel sheets are cut to the required size by another machine, and that cut to size corrugated sheets are further processed on the curving machines to give the required curve, that after these processes, what emerges is the curved steel roof panels which are specifically covered by sub-heading 73089090, that the impugned order classifying these goods under Heading no.7210 is totally incorrect as the Heading No.7210 covers the primary materials, while the goods, in question, are Steel Sheets subjected to the process of corrugation, being cut to size thereafter are given the required curvature so as to serve as Roofing Panel, that heading no.7308 specifically covers the Roofs, that since the goods are covered under Heading no.7308 and the same have fabricated as site for being installed in the factory of Hindustan Tin Works Ltd., the same would be eligible for exemption under notification no.3/2005-CE, that the impugned order classifying the goods under Heading No.7210 and denying exemption under notification no.3/2005-CE is, therefore, not sustainable.
4. Shri Jayant Sahai, ld. Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that the goods, in question, are correctly classifiable under Heading no.7210, that the same are not eligible for exemption under notification no.3/2005-CE and that the goods, in question, are not the goods which have been fabricated and the fabrication is not manufacture. He, therefore, pleaded that there is no infirmity in the impugned order.
5. We have considered the submissions from both the sides and perused the records.
6. As the very first para of the show cause notice dated 21.12.2009 states that the appellant are a manufacturer of Curved Steel Roof Panels falling under Chapter Heading No.73089090 of the Central Excise Tariff Act. The starting raw material for Curved Steel Roof Panels is the Steel Sheets which are subjected to corrugation on the grooving machines and thereafter are cut to the required size and cut to size sheets are subjected to further process on curving machines to give the required curvature and the final product which emerges is the Curved Steel Roof Panels. The show cause notice has been issued on the basis that the processes undertaken by the appellant amount to manufacture and the finished product i.e. Curved Steel Roof Panels falling under sub-heading No.3089090 is liable to central excise duty which was not paid by the Appellant. The Addl. Commissioner while adjudicating the show cause notice, had dropped the proceedings for demand of duty and imposition of penalty on the ground that while the goods are classifiable under sub-heading no.73089090, the same would be eligible for exemption under Notification No.3/2005-CE as the same have been fabricated at site for use in the construction work there. The Commissioner (Appeals) by the impugned order has set aside the Addl. Commissioners order mainly on the ground that these goods are classifiable under Heading No.7210 and not under Heading no.7308 and hence, the same would not be eligible for exemption under Notification No.3/2005-CE as this notification exempts only the goods falling under Heading No.7308 fabricated at site for use in the construction work at that site. We are of the view that the Commissioner (Appeals)s order classifying the goods under Heading No.7210 is not correct, as Heading No.7210 covers the primary products Flat Rolled Products of Iron or Non-alloy Steel, of a width of 600 mm. or more clad, plates or coated, while the goods, in question, are Roof Panels, which are specifically covered by Heading No.7308. Since the goods are classifiable under Heading no.7308 and have been fabricated at site for use in the construction work at that place, the same would be eligible for exemption under Notification No.3/2005-CE (Sl.No.64). The impugned order, therefore, is not correct. The same is set aside. The appeal as well as the stay application are allowed.
[operative part already pronounced] (Justice G. Raghuram) President (Rakesh Kumar) Member (Technical) Ckp.
1