Custom, Excise & Service Tax Tribunal
Sriroz Consultants Pvt Ltd vs Commissioner Of Central Excise, Pune I on 27 March, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. I
Application No. E/S/1494/11 and Appeal No. E/1298/11
(Arising out of Order-in-Appeal No. P-I/RKS/74/2011 dated 10.05.2011 passed by Commissioner of Central Excise (Appeals), Pune I.)
For approval and signature
Honble Mr.S.S. Kang, Vice President
Honble Mr. Sahab Singh, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
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 :Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Sriroz Consultants Pvt Ltd
Appellant
(Represented by: Mr. Bharat Raichandani, Advocate)
Vs
Commissioner of Central Excise, Pune I
Respondent
(Represented by: Mr. S. Dewalwar, Additional Commissioner (A.R) ) CORAM:
Honble Mr.S.S. Kang, Vice President Honble Mr. Sahab Singh, Member (Technical) Date of Hearing : 27.03.2012 Date of Decision: 20.03.2012 ORDER NO..
Per: S.S. Kang
1. Heard both sides.
2. Applicant filed the application for waiver of pre-deposit of duty of Rs 57,87,905/-, interest and penalty.
3. The demand is confirmed on the ground that the applicants are manufacturing and clearing green houses and the same is classifiable under Chapter Heading 94060019 of the Central Excise Tariff as pre-fabricated buildings. The adjudicating authority confirmed the demand, interest and penalty. Applicant filed appeal and application before the Commissioner (Appeals). The Commissioner (Appeals) directed the applicants to deposit Rs 32.00 lakhs for hearing of the appeal. As the applicant failed to comply with the condition of the stay order, the Commissioner (Appeals) vide impugned order dismissed the appeal without going into the merits.
4. The contention of the applicant is that the Tribunal in the case of Srihari Greenhouse Pvt Ltd vs CCE 2012-TIOL-349-CESTAT-MUM, their competitor, waived the pre-deposit of dues for hearing of the appeal where the demand is confirmed on the same ground in respect of the greenhouse. The contention is that in view of the stay order passed by the Tribunal, the pre-deposit of the dues be waived.
5. The revenue relies on the finding of the adjudicating authority to say that the applicants are fabricating the greenhouse in their factory and the same has been cleared. Therefore, they are liable to pay duty as manufacturer of pre-fabricated building.
6. We find that the Tribunal in the case of Srihari Greenhouse Pvt Ltd (supra) vide order dated 15.12.2011 waived the pre-deposit of dues which were confirmed on the same ground. The Tribunal held as under:
6. From the documents available on record, it is seen that the appellant is supplying various raw materials for the construction of greenhouse on payment of sales tax. These materials are procured by the appellant from the market and is not manufactured by the appellant. On the materials procured, only in respect of GI pipes, the appellant is undertaking certain activities such as cutting, drilling, bending etc. By undertaking these activities it cannot be said that the appellant has manufactured a new product as by cutting or drilling holes, GI pipes remain GI pipes and by bending the pipe the product remains the same except that its shape is changed. Only at the site of the client, the appellant erects/commissions the greenhouse using the various raw materials supplied by him or using the material procured by the client and for the purpose of erection and commission, civil work is undertaken. In other words, the appellant has to make concrete foundation and the structure for the greenhouse has to be erected after undertaking civil construction work. Once the greenhouse comes into existence, it is attached to the earth/foundation and becomes immovable goods and hence it cannot be said that the appellant has manufactured an excisable goods at the site. Further the fabrication of the steel structure for erecting the greenhouse is also done at the site. This Tribunal in the case of CCE Hyderabad vs. Ramachandra Rao 2008-TIOL-1653-CESTAT held that merely cutting to size, punching of holes on MS angles and channels do not amount to manufacture. Similarly in the case of Dicostyle Technical P. Ltd [2005 (182) ELT 381] it was held that manufacturing links, balls, footplate, deco joint and clips of various sizes, wooden panel and Castrol wheels do not bring out a prefabricated building nor these can be claimed to have the essential character of prefabricated building. Pre-fabricated buildings means buildings which are finished in the factory or put up as elements cleared together to be assembled on site. There is nothing on record to prove that the various goods manufactured will bring out a pre-fabricated building on assembling the same. The ratio of these judgements apply squarely to the facts of this case. By merely supplying materials for the greenhouse, there is no evidence on record to show that what has been supplied is a greenhouse. Therefore, we are prima facie of the view that the appellant has made out a strong prima facie case in their favour for waiver of pre-deposit of the dues adjudged. Accordingly, we grant unconditional waiver of pre-deposit of 100% of the dues adjudged and stay recovery thereof during the pendency of the appeal.
7. In view of the above stay order passed by the Tribunal, pre-deposit of dues are waived for hearing of the appeal. As the Commissioner (Appeals) has not decided the issue on merits and dismissed the appeal for non compliance with the condition of pre-deposit, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal on merits without insisting pre-deposit and after affording a reasonable opportunity to the appellant.
8. Appeal is allowed by way of remand.
(Dictated in Court.) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President rk 4