Customs, Excise and Gold Tribunal - Calcutta
Bridge & Roof Co. (India) Ltd. vs Commissioner Of Central Excise, Bolpur on 13 September, 2001
JUDGMENT
Archana Wadhwa
1. The short point involved in the present appeal relates to the dispute on excisability and dutiability of structures, which the Commissioner vide his impugned order has held are classifiable under heading 7308.90. CW Pipes have been held to be classifiable under heading 7305.90.
2. It is seen from the facts on record that the said structurals are manufactured by the appellant at their workshop site and are used in the construction of thermal power station. The appellants' contention is that the said structures and CW pipes are not marketable and hence not excisable. The above contention has not been accepted by the Commissioner by observing that there is a specific heading 7308.90 in the Central Excise Tariff w.e.f. 1.3.88 and as such the structures have to discharge the duty burden under the said heading.
3. We have heard Shri P.R.Biswas, ld.consultant appearing for the appellant and Shri V.K.Chaturvedi, ld.SDR for the Revenue.
4. Shri Biswas has assailed the impugned order on merits as also on the point of limitation. He submits that it is well settled principle of law that mere specification in the tariff is not sufficient and the marketability of the goods must be proved so as to hold them as excisable. He also submits that the impugned demand relates to the period 1.4.88 to 20.3.90 and the show cause notice in question was issued on 19.5.92 i.e. beyond the normal period of limitation. While agreeing that they did not observe any central excise formalities and no information was given to the department as regards the said activities, he submits that they were under a bond fide belief, based upon the decisions at the relevant time that such activities does not amount to manufacture. As such he submits that the demand be struck down as barred by limitation.
5. After hearing both the sides we find that the Hon'ble Supreme Court in the case of CCE, Jaipur v. Man Structural Ltd. -2001(44)RLT 113 (SC) has held that the excisability of the structurals have to be decided in the light of the fact that whether they are new identifiable goods that are the result of manufacture and that they are marketable. To the same effect are the other decisions reported in 2001(44) RLT F-7. We note that by following the said decisions the Delhi Bench of the Tribunal in the case of CCE, Raipur v. SAE India Ltd. - 2001(45) RLT 873 (CEGAT-Delhi) has remanded the matters to the adjudicating authority for deciding the matter afresh in the light of the directions as contained in the constitutional Bench decision of the Hon'ble Supreme Court referred supra. As such following the ratio of the decision, we set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision in the light of the observation so made. Inasmuch as the matter is remanded on merits, the adjudicating authority will also deal with the appellants' contention of the demand being time barred.