Customs, Excise and Gold Tribunal - Mumbai
B.E. Billimoria & Co. Pvt. Ltd. vs Commissioner Of Customs & Central ... on 25 April, 2003
ORDER G.N. Srinivasan, Member (J)
1. This appeal has been filed against order No. 96/CEX/95 dated 31.12.1995 whereunder the Commissioner of Customs & Central Excise, Pune, confirmed the demand of Rs. 63,56,181/-, ordered confiscation of 78 nos. PSC girders valued at Rs. 3,23,65,884/- under Rules 173Q and 226, allowing them to be redeemed at Rs. 5 lakhs. The order also imposes a penalty of Rs. 2 lakhs. The main reason for confirming the demand was that the PSC girders were held to be goods and therefore there is no reason why duty on PSC girders should not be held to be exigible having held that the girders were marketable and chargeable to duty.
2. The appellant, who is a contractor, entered into two works contracts dated 5.9.1991 and 8.8.1992 with the Konkan Railway Corporation Ltd. (hereinafter referred to as KRCL) for construction of five bridges at various locations in the Ratnagiri District of the State of Maharashtra. The said bridges were meant for railway purposes wherefore the KRCL specified the exact material, size, weight and dimension to be used in the construction of the said bridges. For execution of these contracts, the appellant created and brought forth 78 Nos. prestressed concrete girders (PSC) which were manufactured at the site where the bridges were required to be constructed. The said girders have to conform to the various standardisation, specification and technical requirements of the appellant's client KRCL. The girders have to be specifically conformed to the local terrain conditions and the soil situations. Way back in February 1994, the department called upon the appellant to furnish necessary details of the said girders. By show cause notice dated 27.1.1994 the Superintend of Central Excise, Ratnagiri, charged the appellant that it had manufactured 63 Nos. of prestressed concrete No. 1 beam-cum-slab girders falling under chapter sub-heading 6807.00 of the Central Excise Tariff Act and demanded duty at the rate of 20% ad valorem from the appellant. Another show cause notice dated 10.5.1994 by the Collector of Central Excise, Pune, charged the appellant that the 78 Nos. of prestressed concrete girders were manufactured at Ratnagiri for failure to register themselves for such manufacture and demanded duty. The annexure to the show cause notice provides for number of girders for five contracts referred to above. It also refers to statement of one B.V. Kulkarni dated 30.3.1994 who in his statement stated to have mentioned that the goods were manufactured. This is the department's case. The statement would be quoted in extenso in the later portion of the instant order. The detailed reply was filed by the appellant denying the liability to the central excise duty. In the alternative, it was also claimed that in case it was held to be a manufacture, the appellant sought benefit of exemption under notification 59/70. The matter was heard by the adjudicating authority, viz. the Commissioner of Customs & Central Excise, Pune, who by the impugned order did not agree with the submissions and contentions raised by the appellant including availability of the benefit of the exemption notification which was pleaded in an alternative way. The thrust of the appellant's case before the adjudicating authority was that the girders were not goods within the meaning of the Central Excise Act and that they were not marketable since they were specially designed for the purpose of execution of those contracts for bridges to meet the requirements of the KRCL. The adjudicating authority did not agree with the above contentions and confirmed the duty by the impugned order. Hence the present appeal.
3. Mr. J.F. Pochkhanawalla, Senior Counsel, appearing along with Advocates, Mulla & Mulla, argued that the approach of the adjudicating authority in this case is wrong. He stated that the adjudicating authority has misdirected himself inasmuch as he has wrongly appreciated the extent and content of the five works contracts entered into between the appellant and KRCL. He stated that the entire contracts envisage the creation of the girders for the purpose of construction of bridges. It is only after bridge which is constructed with various spans and girders, the railway track meant for movement of rail traffic could be achieved. The entire contracts between the appellant and KRCL are not for sale of any movable property or the goods and therefore the term goods which is defined under the Sale of Goods Act and the Central Excise Act will not be applicable to the facts of this case. He emphasises throughout his argument that the reliance of the statement of B.V. Kulkarni made on 30.3.1994 by the adjudicating authority in the impugned order is completely misplaced in coming to a wrong conclusion. He also stated that the concept of works contract and leviability of Sales Tax laws in India by the various States cannot be imported into the leviability of central excise duty under the Central Excise Law. It may be true, it is argued by the learned Senior Counsel for the appellant, that the concept of eligibility of sales tax on the works contract after the 46 th amendment to the Constitution, which enlarges the definition of the word sale under Article 366 of the Constitution will not ipso facto apply to the Central Excise Act. He stated that the judgment of the Supreme Court in Builders Association of India and Ors. v. UOI 1989 2 SCC 645 is absolutely irrelevant for the purpose of this case. He states that in that case the question that arose was for whether the 46th amendment to the Constitution of India was ultravires the Constitution of India and interpretation of Article 286, the provisions of the Central Excise Act and Article 366(29)(a) of the Constitution and no point was raised, argued, considered and decided regarding eligibility of the term goods vis-a-vis the girders in this case under the Central Excise Act.
4. Even regarding the works contact, learned Senior Counsel states that whether an intermediate goods is being sold in execution of works contracts has to be looked into and he cites the judgment of the Madras High Court in the case of Richardson and Cruddas Ltd. v. The State of Madras 1965 (16 STC) 827 where under similar circumstances, they held that the main test is to find out whether employer, here it is KRCL, ever bargained for sale and purchase of the component parts used in the work of fabrication and erection or construction of a building. This judgment of the Madras High Court has been approved by the Supreme Court in appeal filed by the State of Madras reported in 1968 (21 STC) 245. Alternatively, he also stated that he claims exemption notification issued by the Central Government under notification 59/90. He also referred to various other judgments of the Supreme Court like Moti Laminates Pvt. Ltd. v. CCE 1995 (76) ELT 241, and distinguished the judgment of the Supreme Court in A.P. State Electricity Board v. CCE 1994 (70) ELT 3. He claimed exemption under notification 59/90 in an alternative way and relied on the judgment of the Tribunal in Pratibha Industries v. CCE (Order No. M-28/97-D/380-381 dated 8.5.1997) and Delhi Tourism & Transportation Devep. Corporation v. CCE 1999 (114) ELT 421. He also cited some other cases which have followed the earlier judgments. Further, it is stated that by the subsequent notification 51/95, the position has been further clarified, according to the learned Senior Counsel, which states the goods manufactured at the site of construction for use in construction work. This amply clarifies that the intention of the government was not to levy duty for these types of goods where they are manufactured at site. During the course of argument, the department placed before us the letter dated 21.3.2002 of Stresscrete India Ltd., which will be extracted in the later portion of this order. It was argued by the Senior Counsel that the said letter was much after the event namely it was never placed before the adjudicating authority and therefore they could not meet them. The main thrust of the argument of the appellant is that the letter dated 21.3.2002 must show the circumstances under which it was not produced before the adjudicating authority as evidence earlier. The invoices which were annexed to the application of the department dated 19.4.1999 were in possession of the department. While this evidence was not brought forth before the adjudicating authority earlier, it was not property explained why it is produced before the Tribunal much later. In fact in paragraph F of the reply to the application made by the department, the appellant has made strong objection which we shall extract in the later portion of this order.
5. As against this, the learned Joint CDR, Shri Moheb Ali along with Shri P.K. Agarwal, SDR, argued at length as to how the goods are exigible for purpose of excise duty and gave their written submission which is mentioned hereunder:-
"The Respondents are extremely grateful to the Hon'ble Tribunal for giving the SDR patient hearing in the above matter.
2. The basis issue before the Hon'ble Tribunal is whether the PSC girders manufactured by M/s. Billimoria & Co. are liable to C. Ex duty and whether a benefit of the Notification No. 59/90 CE dated 20.3.90 is available to the appellants?
3. It is admitted fact that the appellant entered in to two contracts with M/s. Konkan Railway for construction of five bridges in total at various locations in Ratnagiri district. The construction of all the five bridges was to be completed by using PSC girders as under:-
Sr. No Contract No. Particulars of Location No.of PSC Girde rs KR/RN/W/CONTRACT/ BR/3/92 KAPASHI SITE "R" GIRI DIST.15
KR/RN/W/CONTKACT/ BR/3/92 ASURDE SITE "R" GIRI DIST.30
KR/RN/W/CONTRACT/ BR/3/92 KHERSHETH SITE "R" GIRI DIST.15
KR/RS/W/CONTRACT/ BR/7/91 CHINAGE 168 NEAR "R" GIRI 51 KR/RS/W/CONTRACT/ BR/7/91 CHINAGE 169 NEAR "R" GIRI 12
4. From the above it can be seen that the contract clearly mentions about the No. of PSC girders to be manufactured. It is also admitted that these girders being cast at various casting yards. Therefore the girders come into the existence at the casting yards from where they are removed to be launched on piers. At the time of hearing in the above matter the learned Counsel on behalf of the appellants admitted the fact of manufacture of these PSC girders for further use in the construction of bridges.
MARKETABILITY
5. The learned counsel vehemently argued that the PSC girders in question are not marketable hence not excisable. His main contention was that the contract is for construction of the bridges and not for the girders and these girders are not being bought and sold in the market. To this I submit that actual sale of the goods is not the criteria for deciding the marketability of a manufacture product as held in the various decisions of courts/Tribunals. For marketability of a product it should be seen that the said product is capable of being marketed/sold.
6. In the instant case also the PSC girders are being manufactured by the appellant and utilised in the manufactured of the bridges. Therefore it clearly establishes that the 'utility' is created by manufacturing the said girders. Thus, it establishes the fact that - Had this not been manufactured by the appellants they would have purchased these girders from the market. Hence, the captive use of the girders in the manufacture of bridges does not mean that girders are not marketable, since the actual sale or purchase is not necessary to establish the product's marketability. The department by filing Misc. application has shown that PSC girders are being manufactured by M/s. Stress Crete India Ltd. in their factory at survey No. 35/10, Lohop village, Khalapur Taluk, Raigarh Dist. Maharashtra and cleared the same under cover C. Ex. invoices on payment of C. Ex. duties. This clearly establishes that the goods in question are able to marketed in this case also.
7. I further rely on the following decisions/contentions in support of my above proposition.
1. AP State Electricity Board v. CCE, Hyderabad (1994 (70) E.L.T. 3 (S.C.) At para 10 Hon'ble Supreme Court has held that 'the fact that the goods are not in fact marketed is of no relevance, so long as the goods are marketable, they are goods for the purposes of Section 3. It is not also necessary that the goods in question should be generally available in the market'.
2. Delhi Tourism and Transport Development Corporation v. CCE New Delhi (1999 (114) E.L.T. 421 (Tribunal) In this case the Hon'ble Tribunal at para 4 (1) held that PSC girders and beams are marketable.
3. Gujarat Narmada Valley Fertilizers Co. Ltd. v. CCE Vadodara (1999 (114) ELT 909).
In this case the Hon'ble Tribunal at Para 10 held that actual sale is not necessary for the purpose of marketability. The fact that it was marketability is proved by its utility for the purpose to which it was put.
4. Punjab National Fertilisers and Chemicals Ltd. v. CCE (1998 (37) ELT 155) In this case at para 9 the Hon'ble Tribunal held that 'since the substance in the form of cakes cut to required sizes is usable by the Petitioner in its acetylene gas plant, it would also be usable by some one else for the generation of the acetylene gas. It would then be saleable as being useful for that purpose'. - from this it is seen that in the instant case also the girders are being used by the appellants and thus these are saleable as being useful for the purpose of making bridges.
5. Board of Trust Vishakhapatnam Port Trust v. CCE Guntur (2001 (134) ELT 491).
In this case at para 3 it was held that the huge cement concrete slabs are movable and marketable and thus excisable.
6. Karnataka Electricity Board v. CCE (1989 (43) ELT 356) In this case the Hon'ble Tribunal at para 2 held that the electricity poles manufactured by the appellant are excisable. Not selling the goods does not make it not excisable as the RCC poles manufactured by the electricity poles are for their own use).
(Copies of the above decisions are enclosed herewith and marked jointly as annexure A).
8. From the above judgments/decisions it is very clear that girders in this case, though not actually marketed/sold, remained to be marketable as these are being manufactured and put to use for making the bridges. The following judgments relied upon by the learned Counsel also clearly show that the goods in question are marketable without any doubt and thus the impugned goods are excisable and duties of CEX have to be paid as goods are rightly classifiable under heading 6807.00 of the schedule to the CETA 1995.
1. Pratibha Inds v. CC Bom (in Appeal No. E/1134/92-D).
2. Delhi Tourism and Transport Development Corporation v. CCE New Delhi (1999 (114) E.L.T. 421 (Tribunal)
3. U.P. State Bridge Corporation Ltd. v. C.C.E. Chandigarh-II (2001 (130) E.L.T. 290 (Tri-Del.).
4. Tecco v. CCE, Madurai (2001 (47) RLT 831 (CEGAT-Che).
(copies of the above decisions are enclosed herewith and marked jointly as annexure B) Though the above decision were referred by the learned counsel for advancing the arguments for availability of Notification benefit under Notification No. 59/90-CE (which I will deal with later on), but the fact remains that the Tribunal assume that the products in question are marketable and excisable as the Tribunal proceeded to examine the applicability of the Notification only when the marketability and exciseability were not in dispute. In Delhi Tourism case, cast Beam/girders used in flyovers were found to be marketable and excisable. Similarly in Pratibha Industries case Storm Water Road Drains were assumed to be marketable and excisable. Again in U.P. State Bridge Corporation case the beams used in the construction of Arterial expressway corridor and in the case of Tecco cement articles used in making bridges were assumed to be marketable and excisable. Therefore, in this case also the impugned goods are marketable and excisable.
9. Applicability of Notification No. 59/90 CE - The learned counsel for the appellants heavily relied on the judgments/decisions mentioned at para 8 above. From all these decisions it is seen that the issue before the Hon'ble Tribunal was the interpretation of the word 'site. Non of the decisions referred by the learned counsel dealt with the issue - whether the bridge will be construed as buildings? The Notification No. 59/90 CE dated 20.3.90 exempt the goods at Sr. No. 7 as follows.
'goods manufactured at the site of the construction of buildings for use it such site' From this it is seen that the Notification benefit is available by fulfilling following two conditions.
I) The goods manufactured at the site;
II) The goods so manufactured should be used in the construction of buildings.
No doubt, the girders here have been manufactured at site, but these girders have not been used in the construction of building. The judgments relied upon by the learned counsel as mentioned at para 8 above, have dealt the issue of site only and the question of interpretation of the word building was not before the Tribunal, therefore the ratio laid down by these judgments are not applicable in the present case. Here in this case the goods have been used in the construction of the bridges and not in the building, therefore the benefit of the Notification is not available to the appellants. By no stretch of imagination a bridge can be construed as buildings. The word 'building' has been defined in Concise Oxford Dictionary (1990 edition) 'as a permanent fixed structure forming an enclosure and providing protection from the elements etc. (e.g. the house, school, factory, stable)'. This clearly does not cover a bridge within its ambit. Thus the girders in question are liable to Central Excise duty under CSH 6807 of CETA, 85 and Notification benefit is not available to the appellants.
10. Further, an Exemption Notification has to be construed strictly and in case of doubt the benefit should go to the state. For this proposition I rely on the following judgments/decisions.
1. Novopan India Ltd. v. CCE & Customs, Hyderabad (1994 (73) E.L.T. 769 (S.C.)
2. CCE v. Himalayan Co-Op Milk Product Union Ltd. (2000 (122) E.L.T. 327 (S.C.) - para 8.
3. K.R. Engg. Works v. CCE, Bangalore, (2000 (125) E.L.T. 1218 (Tribunal) - para 7.3
4. CCE v. Laxmi Engg. Works (2000 (125) E.L.T. 1097 (Tribunal) -para 6
5. Tisco v. CCE Patna (2000 (124) E.L.T. 429 (Tribunal) - Para 9.
(copies of the above decisions are enclosed herewith and marked jointly as annexure C.)
11. The other issues relating to valuation etc. has not been contested; accordingly, I reiterate the findings/discussion of the Commissioner in the O-in-O. sd/-
19-08-02 (P.K. Agarwal) SDR, CEGAT"
6. In reply, the appellant also gave its notes of argument which are as follows:-
"The Appellants abovenamed are grateful for the opportunity granted by the Hon'ble Tribunal to furnish Written Submissions in respect of their several contentions that were raised by Counsel during the course of arguments in the above matter.
Counsel, on behalf of the Appellants, highlighted the following aspects of their case.
I. MARKETABILITY:
1. It was urged that the special girders that were cast by the Appellants as part of their indivisible works contract, for work and labour to build bridges on the designated section of Konkan Railway Corporation Ltd., are incapable of being bought and sold in the market. It was respectfully urged that in the terrain assigned to the Appellants by Konkan Railway Corporation Ltd. the various bridges that were required to be built were specified by Konkan Railway Corporation Ltd. The number of girders, the dimensions and strength of each girder for each bridge were also different as specified, keeping in mind the specific terrain conditions prevailing at each bridge site.
2. The Appellants' contract was to build railway bridges. Speciality Girders were cast by the Appellants only for the purpose of the railway bridges. Launching of the girders on the bridges was part of the said contract. Hereto annexed and marked as Annexure "1" is a copy of the detailed note on the works contract which the Hon'ble Bench had earlier asked the Appellants to provide along with the judgment in the State of Madras v. Richardson & Cruddas Ltd. 1968 STC Vol. XXI 245. The Appellants, while making the submissions before this Hon'ble Bench, handed over the works contract between them and Konkan Railway Corporation Ltd. and the bills raised during the course of the works.
3. It was respectfully urged by Counsel that the Hon'ble Supreme Court of India has, in a catena of judicial decisions, consistently held that it is for the department that seeks to levy duty to prove with evidence that an item is marketable. The Appellants respectfully urged that the department has not discharged this burden of proof in any manner whatsoever, viz. the department has been unable to establish that the said Special Girders specified as to separate size,weight and dimensions for each girder are capable of being bought and sold and/or are in fact bought and sold in the market.
4. Countering a submission made by the Department, it was respectfully urged on behalf of the Appellants that merely because an item may be excisable under the Central Excise Tariff Act does not mean that ipso facto such item is leviable to Excise Duty. The Hon'ble Supreme Court of India has in terms held in the case of Moti Laminates reported in 1995 (76) ELT 241 SC that even if an item is excisable under the Tariff, unless the same is marketable, no excise duty is payable on such items. This decision which is the final word on the subject, is completely binding on all concerned. A copy of the same is annexed and marked as Annexure "2".
5. Counsel respectfully pointed out that at no stage under the said indivisible contract did the Appellants ever sell the said Girders to Konkan Railway Corporation Ltd. There was no separate costing for the said Girders. It was the common intention of both parties as indeed that of all other similar notices, that the said Girders are part and parcel of the bridges that were built by the Appellants. The Show Cause Notice proceeds on the erroneous footing that the Appellants allegedly clandestinely manufactured the said Girders but did not pay excise duty on them. It is the Appellants' respectful submission that this allegation is completely unfounded since it has been the consistent bona fide belief of Konkan Railway Corporation ltd., the Appellants as well as all other Works Contractors who were assigned the various segments of the Konkan Railway Corporation Ltd. that the Girders that were cast at site for the several bridges, were part and parcel of the indivisible works contract for bridges and that no separate excise duty was payable in respect of the same, since the same are not capable of being bought and sold in the market.
6. The Appellants countered the purported new evidence that was sought to be introduced by the department at the penultimate stage of the hearing of the matter. This purported evidence was in the nature of so called excise invoices of a party, Stresscrete India Ltd. It was pointed out on behalf of the Appellants that the very letter dated 21st Marc 2002 under whose cover the said excise invoices had been furnished to the Excise Department by Stresscrete India Ltd. demonstrates that the said party nowhere categorically states that they are selling the said Girders in the market. On the contrary, the said letter admits that the Girders that they manufacture are of special quality and requirements and are cast by them only specific to the purpose. Further Counsel demonstrated to the Hon'ble Tribunal the apparent contradictions between the said letter dated 21st March 2002 and the brochure purportedly published by Stresscrete India Ltd. viz that in the letter dated 21-3-2002 they admit that they do not stock and sell girders whereas their brochure states so! Counsel respectfully urged this Hon'ble Bench not to accept either contradiction. Counsel emphasised that the documents produced by the Department were, in a sense coerced from Stresscrete India Ltd.
7. A detailed Affidavit, countering the Department's said Miscellaneous Application was handed over. A copy of the same is annexed and marked as Annexure "3" to the submissions. Counsel submitted that the said girders are not manufactured/stocked and sold by Stresscrete India Ltd.; the same are only cast by them as per the requirements of their projects. Furthermore, Counsel on behalf of the Appellants pointed out to the Hon'ble Tribunal that in March 2002 the department was purporting to show four (4) Excise Invoices of April 1999 where the said Stresscrete India Ltd. appear to have consigned one single Girder under each Invoice in respect of four different project contracts undertaken by the said Stresscrete India Ltd. It was respectfully urged that this does not by any stretch of imagination indicate that the said Girders are capable of being bought and sold in the market.
8. Counsel respectfully pointed out that even assuming without admitting that the said Excise Invoices are genuine, which has not been proved in any manner, even so, merely because one party may declare for its own internal purposes a value of a Girder which is sends from its factory to its construction site on payment of excise duty, does not mean that the said product is a marketable product. It is the party's wish and desire that it has paid the duty on the said girder for reasons best known to itself. However, this does not make Girders per se a marketable commodity. The Appellants, as well as all other works contractors as well as Konkan Railway have steadfastly maintained at all times that the said girders are not excisable since the same are incapable of being bought and sold in the market. The question is not of convenience; the question is of incapability of being bought and sold in the market - a test that the Department though bound to fulfil, could not fulfil.
9. Counsel furnished the following judgments in favour of the Appellants' contentions all Collectively marked as Annexure "4" to these submissions.
a) Collector of CEX v. Dodsal Manufacturing (P) Ltd. 2001 (127) ELT 324 (S.C.)-->following
b) Quality Steel Tubes (P) Ltd. v. Collector of CEX, U.P. 1995 (75) ELT 17 SC
c) Moti Laminates Pvt. Ltd. v. Collector of CEX, Ahmedabad 1995 (76) ELT 241 SC (already annexed as Annexure "2.")
d) Collector of CEX Jaipur v. Man Structurals Ltd. 2001 (130) ELT 401 SC
e) Bhor Industries Ltd. v. Collector of CEX 1989 (40) ELT 280 (SC)
10. Counsel refuted the various Tribunal decisions that were sought to be cited by the Department. None of these judgments that the Department sought to cite addressed the main issue contended by the Appellants, namely, that the Department has failed to discharge the burden of proving with evidence that Speciality Girders were capable of being bought and sold in the market as such.
11. Countering the Department's submissions that if an item is movable it is automatically marketable it was demonstrated that the judgments of the Tribunal cited by the Department in the case of Board of Trustee Visakapatnam v. CCE Guntur 2001 (134) ELT 491; Gujrat Narmada Valley Fertilizer Co. v. CCE Baroda 1999 (114) ELT 909; Punjab National Fertilizers v. CCE 1988 (37) ELT 155; Shakti Shimers v. CCE 2000 (118) ELT 412 are respectfully not binding nor correct in as much as the same are on the basis of captive consumption and "sub silencio" in nature in as much as they have not even considered the binding Supreme Court judgment of Moti Laminates (as further subsequently affirmed in the Dodsal judgment) which in terms holds that marketability is the sine qua non for excisability and that the burden of proof is on the Department to prove marketability. It was submitted by Counsel that in the Appellants' case there was not even an allegation of "captive consumption" in the Show Cause Notice. Hence the Tribunal's decisions relied upon by the Department are respectfully not relevant to the present case.
12. Furthermore, the Appellants pointed out to the Hon'ble Tribunal that the judgment of the Hon'ble Supreme Court in the Andhra Pradesh Electricity Board case which the Department heavily relied upon, both in the impugned Order as well as during oral submissions was not applicable in their case since in that judgment, the Court specifically declared in paragraph 10 of the judgment that it was an admitted position by the party that concrete telephone poles are bought and sold as such in the State of Kerala. Thus the same satisfied the test of marketability. In the Appellants' case neither is there any such admission by the Appellants nor is there any evidence produced by the Department.
13. The Appellants therefore respectfully submitted that the so called new evidence that the Department was trying to introduce ought not to be considered by the Hon'ble Tribunal since the same does not in any manner assist the Hon'ble Tribunal to conclude that Speciality Girders as cast by the Appellants at the bridge sites are a marketable commodity.
14. It was submitted by Counsel that actually the entire Appeal can be decided in their favour on this submission alone.
15. However, at the insistence of the Department Representative, Counsel was requested to urge other alternative submissions which are as follows:
II. APPLICABILITY OF EXEMPTION NOTIFICATION 59 OF 1990 DATED 20-03-1990:
1. It was urged by the Appellants that presuming while denying that it is possible to contend that the Girders are marketable, in any event, the same are not liable to Excise Duty since, the same are exempted from payment of Excise Duty under the provisions of Exemption Notification of 59 of 1990 dated 20-03-1990 as applicable to the period when the Appellants cast the said Girders on behalf of Konkan Railway Corporation Ltd.
2. It was urged that the Show Cause Notice wrongly proceeded on the bass that the benefit of exemption under Notification 59 of 1990 dated 20-3-1990 is available only to those goods which are used at the site of construction of buildings. It was respectfully urged that this illegal contention in the Show Cause Notice which was upheld in the Impugned Order begs the main issue as regards "site" which is the focal point of the Exemption Notification. The emphasis is on the granting of exemption to goods manufactured at the site of construction for use at such site. It was therefore urged that the essential feature of the language of the Notification is the word "site" and not the word "building." It was respectfully urged that it is erroneous to read that the goods manufactured at site must be used for the construction of a building. When read with the emphasis on "site" as had been done in a catena of decisions of this Hon'ble Tribunal which are binding on the Department, as well as on the Hon'ble Tribunal itself, it follows that the benefit of the exemption must be granted to the Appellants who use the said Girders at the site of construction of the said bridges.
3. The Appellants submit that they have already handed over during the course of arguments, detailed written submissions with a chart and applicable case law to substantiate all of the above qua availability of exemption Notification 59/90 to them. A copy of the same is annexed as Annexure "5" collectively.
4. Counsel on behalf of the Appellants respectfully went though each and ever one of the concerned Judgments of the Hon'ble Tribunal Benches to show that for the very same period under the very same notification, exemption was granted by the Hon'ble Tribunal with the emphasis correctly laid on "site of construction."
1. Pratibha Industries v. Com. Cen. Excise Bombay. Order No. M-28/97-D/380-381/97-D dated 8th May 1997 passed by Tribunal Bench, Delhi (Annexed as part of Annexure "5").
2. Delhi Tourism & Transportation Devep. Corporation v. C.C.E., New Delhi 1999 (114) ELT 421 (Tribunal) (Annexed as part of Annexure "5").
Subsequent decision of the Tribunal invoking the same Notification 59/90 for the same period for various items manufactured at construction site where emphasis was laid on "site" are
1. Transport Equipment & Construction Co. v. CLE Madurai 2000 (92) ECR 604
2. Asia Foundations & Constructions Ltd. v. CCE, Pune II 1999 (114) ELT 330 West Zonal Bench.
3. Tecco v. CCE Madurai 2001 (47) RLT 831 Copies of the above three judgments are collectively annexed as Annexure "6" hereto.
Numerous other decisions for subsequent periods, where the same Notification 59/90 has been beneficially extended for the period relevant to the said notification were cited before the Hon'ble Tribunal.
5. It was respectfully highlighted on behalf of the Appellants that construing Notification 59 of 1990 dated 20-3-1990 during the same time frame as in the Appellants' case the Hon'ble Tribunal has extended the benefit of the Notification to storm water drains in respect of roads, to pillars and girders in respect of bridges. In not a single one of the said cases has the Hon'ble Tribunal held that the Exemption Notification was to be denied because roads and bridges are not "buildings'. Counsel respectfully urged that each and every one of these decisions is identical to the Appellants' case and binding upon the Hon'ble Bench. Therefore, in the interest of justice the benefit of the said Exemption Notification must be extended to them also. It would not be proper that under identical circumstances, repeatedly the Hon'ble Benches have extended benefit of the said Exemption Notification under similar circumstances to other parties but that the same would be denied to the Appellants. Further, it was respectfully submitted that since the Appellants rely on these judgments on the point of extending the benefit of exemption Notification 59/90 in their case also, it would not be just, fair and proper to ignore the same on the ground that the same are distinguishable on the aspect of "building." Such an approach, with all due respect, would deny to the Appellants the benefit of the said judgments and would cause uncalled for discrimination, leave alone rendering the said earlier judgments as negated, which is inconsistent with law.
6. It was respectfully urged that the impugned Order cited the "Concise Oxford Dictionary" to give the meaning of the word "building" as being "a dwelling house or a shelter" and held that therefore a bridge is not a building. It is axiomatic that a concise version of a dictionary was used of a dictionary was used to deny the benefit of the exemption to the Appellants. Counsel respectfully submitted that a building is an edifice or structure, it can be anything and need not only be a dwelling house as is sought to be contended by the Department. In fact, Counsel made reference to the same Dictionary's larger edition (available in this Hon'ble Bench's library) to demonstrate that on page No. 249 the meaning of the word "building" has been specifically given as "that which is built; a structure or edifice." The identical definition appears in 'The Compact edition of the Oxford English Dictionary' Volume 1 page No. 161. Therefore, viewed in this way also, a bridge is a structure and an edifice and the benefit under the Exemption Notification must be extended to bridges. A copy of the relevant page of the "The Compact edition of the Oxford English Dictionary' Volume 1 Page No. 291 is annexed as Annexure "7."
7. On a pointed query raised by the Hon'ble Tribunal as to whether any judgment refers to bridges as buildings, it was respectfully pointed out on behalf of the Appellants that in the case of Tecco v. CCE Madurai reported in 2001 (47) RLT 831 this specific question has been addressed by the Hon'ble Tribunal. In the said case the very contention of the Counsel was that the bridge is in fact a building. After referring to other case laws on the subject i.e. of K.S. & Co. Final Order No. 1811/2001 dated 14-12-2001 the Hon'ble Tribunal extended that benefit of the Exemption Notification to the party in that case. Thus it follows that, even the Hon'ble Tribunal agrees that "building" includes a "bridge." A copy of Tecco's judgment is already annexed hereto as part of Annexure "6."
8. Counsel respectfully urged that the discussion on the dictionary meaning of the word "building" and whether the same would include a bridge is only an alternative argument. The Appellants main arguments continues to remain that if the same exemption for the same period was granted in respect of storm water drains, girders, columns and poles used for road construction or bridge construction or fly-over construction which were never used at the construction site of any building, then, the Appellants should not be discriminated against and the benefit of this exemption must go to the Appellants.
9. It was respectfully urged by Counsel that the aforesaid decisions are all of co-ordinate Benches of the Hon'ble Tribunal. The same are therefore binding not only on the Department and on the Appellants; but, with due respect, on the Hon'ble Tribunal itself. It is well settled in law by the Hon'ble Supreme Court of India in the landmark case of Sub-Committee for Judicial Accountability v. Union of India reported in (1992) 4 SCC 97 and favourably referred to by the Supreme Court again in Pradip Pariga v. Pramod Patnaik as recently as in (2002) 1 SCC page 1 that even one bench of the Hon'ble Supreme Court of India cannot comment upon, leave alone sit in judgment over the judgment rendered by another co-ordinate Bench. If one Bench holds the view that decision of another bench of the same Court is just not acceptable for the reasons to be cited, then, the only course of action is to refer the matter to the Hon'ble Justice to place the matter before a larger Bench. This very laudable practice has been consistently followed by the Hon'ble Tribunal itself over the years.
10. The Appellants therefore respectfully submitted to the Hon'ble Tribunal that in the unlikely event that this Hon'ble Bench is unable to persuade itself to accept the catena of judicial decisions of other co-ordinate Benches cited before it, then, it is most respectfully submitted that the only proper course of action that this Hon'ble Bench ought to follow would be to refer the matter to the Hon'ble President for the question on this aspect to be answered by a larger Bench. It was respectfully submitted that if this is not done, the effect for the Appellant will be, that judgments of Tribunal Benches consistently in their favour on the points canvassed byu them will be rendered over-ruled by this Hon'ble Bench, which, it is respectfully submitted, is not permissible in law. A copy of each of the Supreme Court's decisions referred to herein is annexed as Annexure "8."
11. Alternatively it was respectfully urged by the Appellants that the amending Notification No. 51 of 1995 had amended the said earlier Notification No. 51 of 1995 had amended the said earlier Notification 59 of 1990, was in fact clarificatory in nature since the word "building" was removed from the particular portion of the Notification while the rest of the subject matter in that portion remains the same. This was because Konkan Railway Corporation Ltd. itself represented to the Central Government that unforeseen Excise Duty problems have arisen in respect of the said Girders, which was never within the contemplation of the contracting parties. It is for this reason that the word "building" was removed from the said Notification. Therefore, on a pointed query put by the Hon'ble Tribunal in this behalf, Counsel respectfully cited the decision of the Hon'ble Supreme Court of India in the case of Johnson & Johnson Ltd. reported in 1997 (92) ELT 23 S.C. directly on the point to state that when an earlier notification is required to be interpreted, the best course of action is to take recourse from the language of the subsequent notification. Viewed thus, the subsequent notification, makes it abundantly clear that the intention of legislature was always to grant exemption in respect of items that are used at the site of construction. The intention of legislature therefore always has been to lay emphasis on the site of construction and not on any building. In that event, the benefit of the said exemption must also be granted to the Appellants. A copy of the said Supreme Court decision in Johnson & Johnson Ltd. in annexed as Annexure "9."
III. :
1. One of the contentions raised by the Appellants both at the time of the hearing before the Commissioner, as well as in their Appeal before this Hon'ble Tribunal is, that Girders per se are not enumerated "in the Schedule to the Central Excise Tariff Act. This was reiterated during submissions on a pointed query raised by the Hon'ble Bench. Hence, the same is not excisable per se. What is cast is a concrete block of a specified dimension and strength. The same becomes Girder only after it is launched and placed on two columns permanently. Therefore since the Show Cause Notice proceeded on the basis of claiming that the Appellants manufactured the Girders which were cast at the site, then on this ground alone the notice is bad in law. The Appellants never "manufacture" girders. Girders come into existence as immovable property ONLY after the concrete block is launched permanently between two piers or columns. On this ground also, the same are not excisable.
2. This Hon'ble Bench in the case of Asia Foundations & Constructions Ltd. v. Com. CEX 1999 (114) ELT 330, also took the same prima facie view after considering Pratibha Industries case. A copy of the Order in Asia Foundation case is already annexed at Annexure "6." It is respectfully submitted that there has been no new law laid down by the Hon'ble Supreme Court or the High Courts or the Tribunal that might persuade the same Hon'ble Bench to change its views expressed in the said Order. Counsel submitted that at the stage, when the griders came into existence, as duly launched between piers as aforesaid the same were already permanently attached to the earth. Therefore, the same was immovable property and not amenable to Central Excise Duty. Counsel cited the following judgements in respect of this contention. Please see Quality Steel Tubes v. Coll. Cen.
Ex. 1995 (75) ELT 17 (SC) (already annexed in Annexure "4".) IV. Limitation:
1. Lastly and most importantly it was respectfully urged on behalf of the Appellants that the Show Cause Notice is clearly hit by the bar of limitation. The same is dated 10th May, 1994 and refers to the period 25-11-1992 to 30-3- 1994. During the relevant period Konkan Railway Corporation Ltd. entered into several works contracts not only with the Appellants but with several other parties. All of these parties including the Appellants, built bridges, culverts, etc., on behalf of Konkan Railway Corporation Ltd. All of these parties including Konkan Railway Corporation Ltd. have received the identical Show Cause Notices and it is the respectful contention of the Appellants as well as the common contention of all the other parties that it was always the bona fide common belief that a girder is not a marketable commodity since the same is incapable of being bought and sold in the market; that even presuming while denying that it is a marketable commodity, the benefit of Exemption of Notification 59 of 1990 is available to it. Furthermore, it is not a manufactured item because it is not enumerated in the schedule. It comes into existence as an immovable property on the top of piers during the course of construction of a bridge. Furthermore, the same activity was conducted by the Appellants as well as all the other parties including Konkan Railway Corporation Ltd. in the open and not clandestinely. The Excise Authorities were aware at all time that Konkan Railway Corporation Ltd.'s work is in progress and that the bridges are being built for the said Railways.
2. Hence, both on the aspect of bona fide belief and on the aspect that the job was done in the open and not clandestinely, it could never be held that the Appellants deliberately suppressed from the Department that they were manufacturing Girders. In such circumstances, the Appellants respectfully submitted that the larger period could never be invoked. The Show Cause Notice as well as the impugned Order failed to appreciate this aspect, and both were completely defective as a consequence.
3. Lastly therefore, the Appellants respectfully submitted that in view of all the foregoing submissions it could never be held that the Appellants deliberately suppressed from the Department that they were manufacturing Girders and not paying Excise Duty on the same. It is inconceivable that a massive Government of India Undertaking like Konkan Railway Corporation Ltd. and the several workers contractors including the Appellants should all deliberately suppress any activity from the Central Excise Authorities. The only logical conclusion therefore is that the Appellants just like Konkan Railway Corporation Ltd. as well as all other work contractors were of the bona fide belief that they are not liable to pay Excise Duty in respect of the said Girders for the various reasons cited hereinabove. In that event therefore, it was respectfully submitted that no penalty whatsoever ought to have been imposed on the Appellants. In this behalf of the Appellants relied on the following judgments:
1. Cosmic Dye Chem v. CCE 1995 (75) ELT 721 SC
2. CCE v. Chemphor Drugs & Laminates 1989 (40) ELT 276 SC.
These binding judgments have been consistently followed by the Hon'ble Tribunal over the years in a catena of judicial decisions. The same fully support the Appellants' contentions. A copy each of both cited judgments are annexed as Annexure "10" Collectively.
CONCLUSION:
For all the aforesaid reasons the Appellants pray that their Appeal filed before this Hon'ble Tribunal may be allowed with all consequential reliefs."
7. The thrust of the appellant's case is mentioned by way of repetition, that there is no manufacture of any goods and they are not goods within the meaning of the Central Excise Act. Alternatively, they come within the purview of the exemption notification. Last but not least, they have also stated that invocation of the larger period of limitation is absolutely wrong in law inasmuch as the bridges were constructed not in a surreptitious way or in a secret way but openly and nobody could have built the bridge without the entire public at large looking into the same at the time of girders made at the site.
8. We have considered the rival submissions. The show cause notice dated 10.5.1994 says that the appellant has manufactured 78 Nos. of prestressed concrete girders falling under chapter Sub- heading 6807 and they did not follow the provisions of various rules. The show cause notice further in the annexure attached to it states that the statement of B.V. Kulkarni that the appellant had entered into a contract with Konkan Railway for construction of totalling five bridges at various locations in the Ratangairi district. In paragraph 2.3 of the Statement of Kulkarni, it is stated as under:-
"2.3 The process of casting and launching of PSC girders, as verified by officers of Department and detailed by Shri D.V. Kulkarni, in his statement dated 30.3.94 is as under:-
i) Initially a casting yard is developed on site by doing earth work and a concrete bed is prepared in the yard for processing of girders. This concrete bed is necessary for placing of the girders.
ii) Steel shuttering as per specifications and designs supplied by KRCL is erected over the casting yard.
iii) Side by side reinforcement steel is cut, bent and then subjected to anti-corrosive treatment which involves cleaning of steel with water acids, alkalies and anti corrosive chemicals and cements slurry.
iv) After inspection of the shuttering by KRCL, the anti corrosive treated reinforcement steel is tied inside the shuttering as per drawings.
v) High tensile steel cables are inserted through the reinforcement steel in order to induce the required quantity of stress in the girders.
vi) Concrete mixtures consisting of sand, cement, metal, water and certain additives is poured into the shuttering and representative samples of the mixtures is drawn to be tested for the requisite strength.
vii) After the period of one or two days of pouring of concrete the shuttering is removed and after a period of 5 to 7 days some of the HT cables are stressed.
viii) After the girder is cured for about 21 days the remaining cables are stressed with help of winches and jacks grouted and epoxy coating is applied. At this stage the girder is ready.
Subsequently, when all the piers/columns for the bridges are ready the girders are shifted one by one using a temporary rail track, pre-fabricated steel launching equipment trollies etc. and placed in appropriated positions."
9. In the reply to the show cause notice, filed on 16.8.1994, the appellant stated in paragraph 4 thereof as follows:-
"Our clients respectfully submit that the aspect of marketability has been wrongly interpreted in the show cause notice. The Hon'ble Supreme Court of India has laid down in no uncertain terms that the marketability of a product means that the goods are known to the market as such and are ordinarily bought and sold in the market as such. The concrete girders are neither known to the market as such nor are they capable of being bought and sold in the market as such. Each girder is specified for a particular purpose and for a particular bridge being constructed for the Konkan Railways. The same is incapable of being used by any other party or at any other site. The girders are peculiar to each bridge and they cannot be interchanged with bridges being built under contracts with other parties. In the circumstances, the same cannot be called goods by any stretch of imagination."
10. The adjudicating authority, in dealing with this issue, has held that B.E. Billimoria & Co. Pvt. Ltd. has tried to take a stand that what was being manufactured by them was not a girder but a slap only and once the slab was placed (launched) on the pears, only then the girder came into existence. At the time since the girder consisting of slab and pears got embedded in the earth, they were immovable property and could not be considered as goods for the purpose of charging duty. The adjudicating authority further holds in page 10 of his order, he does not specifically deal with the marketability but he only tries to derive support from the judgment of the Supreme Court in the case of Narne Tulaman Manufacturers Pvt. Ltd. v. CCE AIR 1989 (SC) 79 and also the judgment of the Supreme Court in the case of Andhra Pradesh State Electricity Board v. CCE 1994 (70) ELT 3 (SC). He held actually as follows:-
"The fact that the goods are not actually marketed is of no relevance. It is also not necessary that the goods in question to be generally available in the market. It was added that the marketability does not depend upon number of purchasers."
11. The entire scenario of the cases has to be understood in the proper perspective. When we take the contract between the appellant and KRCL which deals with the work known as follows:-
"The scope of work covered by this tender is for construction of new bridge for the proposed BG Railway line across the valley at ch. 168/626 - 968 and 169/250 - 341.2 (Ch. Of Ratnagiri is 165/01) of the Project."
(Emphasis supplied).
The girder numbers have been fixed at 15 Nos. The second paragraph deal with bridge work involved as construction of bored pile/open foundations, RCC piers and superstructure in prestressed concrete girders with RCC deck slab on top, including neoprene bearings. When this is the nature and scope of the work, can we say that girder was not object of the contract between KRCL and the contractor appellant? The contract is for construction of bridges. It is the common knowledge that a bridge cannot be constructed without the foundation and spans and connecting link which connects the two spans by means of slabs or concrete structures. Here in this case it is true that the parties have come to the definite understanding that the concrete girders of the requisite size depending upon the terrain under which it is used will be manufactured at site by the contractor appellant and placed on the piers and embedded to the earth. Can we at this conspectus of facts come to the conclusion that the parties intended to have agreed for manufacture of "goods" called PSC girders? If it is so, then can we treat them as goods within the meaning of the relevant provisions of the Central Excise Act?
12. It is clear that Kullkarni's statement referred to above definitely states that a casting yard is developed at site by doing the earth work and the concrete poles prepared for processing of girders. Steel shuttering as per specification and designs is erected over the cast yard. How the concrete mixtures consisting of sand, cement, metal and water and some additive is poured and how the girder is made after waiting for certain period called curing. the produced material namely girder which is weighting about nearly 90 tons, can it be brought to the market and sold? as such the practice of the appellant is clear in paragraph 4 of the reply to the show cause notice. The statement given by Kulkarni, which is extracted above, does not in a clear and unequivocal term state that they are bought and sold in the market as such. The marketability is mentioned in paragraph 5 of the annexure to the show cause notice as follows:-
"From the process of casting of the girders as elaborated above and from other enquiry in relation there to and after mixture of four materials, concrete cement coils etc. and a manufactured product called girder comes into existence which is used in the manufacture of bridge."
This product, it is claimed in the annexure to the show cause notice, in the commercial parlance as PSC girders. The fact that the same are known and purchased as PSC girders is that the order in the instant case is placed by KRCL, as mentioned in paragraph 5.1 of the annexure to the show cause notice. To us it appears that the entire exercise made by the department in the annexure to the show cause notice is blind to the actual facts. As stated above, the scope of the work is for construction of a bridge. A bridge may consist of bricks, how a foundation for a bridge has to be made, how a plan has to be made and how two spans have to be connected by civil construction. But does it mean that the prestressed concrete girders which may be one of the components of constructing the bridge could be the intention of being purchased and sold by the contractor and the employer KRCL. In our view, the department has misdirected itself in issuing the show cause notice on these terms. It was blind to the situation which in reality has happened. By way of repetition we may mention that the bargain between the party was for construction of bridges and not for creation or manufacture of girders by the contractor and sale thereof by the contractor to the employer, KRCL. Imagine the situation where KRCL puts an end to the contract in between and girders have been manufactured when legal proceedings are instituted, and KRCL takes possession of the girders, can the assessee plead that the assessee has sold the goods namely girders? Obviously not. It will not be correct on the part of the assessee contractor to plead that they have sold the girders. They might have produced or made concrete slab and such a production or making of the girders is for the discharge of the contract for construction of the bridges only and not for making and selling of girders. The tenor of the scope of the work as mentioned in the tender fairly states that the employer and the assessee have bargained for only the construction of bridges by the assessee contractor.
13. This takes us to an interesting question of works contract. The concept of works contract and its eligibility to sales tax was developed in India law in the taxation regime in respect of levy of sales tax by the State in India. There was always an institution of legal proceedings between the assessee and various States in respect of livability of sales tax on the structures made by the contractors. In one of the cases which arose in Richardson and Cruddas Ltd. v. The State of Madras 1965 (16 STC) 827, there was a contract consisting of fabrication and erection of steel structures of building at the site of customer. The assessee while doing so pleaded that it was a case of works contract and not sale. It was pleaded that the contract was indivisible one and the supply of material is only accessory to the performance of the contract for work and labour. The test was being succinctly put by the Madras High at page 832 of the said case reported as follows:-
"The property in the material supplied by the contractor passes to the owner of the site not by reason of the delivery of the material "as goods in pursuance of and under and agreement for sale" with a stipulation for a particular price. The property in the material passes to the owner only when they are affixed in pursuance of the works contract."
Here what happens to the girders? The girders are affixed on the pier and once it is affixed permanently to the piers, it becomes an immovable property. It is not a divisible contract. Even if it is so, the goods cannot be purchased as such as mentioned in paragraph 4 of the reply to the show cause notice. It is true that in the impugned order at pages 10 and 11, the adjudicating authority has tried to whittle down the case of the appellant by mentioning a different stand taken by KRCL. Nowhere has he discuses the scope of the work which has been stated by KRCL not in the way in which the adjudicating authority has misdirected himself. Solicitors for KRCL by their reply to show cause notice in Exhibit F to the appeal states that the said girders are not goods and not capable of being brought to the market for being bought and sold. It is submitted that the said girders are used in the construction of bridges and are specifically designed for that purpose and they have not market and they are not capable of being sold in the market as such and hence no central excise duty can be levied. When both parties namely the employer and the contractor have specifically taken the stand, it is not possible for us to agree that the girders are goods within the meaning of the Central Excise Act.
14. This takes us to some other aspect of the matter namely discussion of the case laws. Both parties have cited several cases. One case which dealt with the fact of works contract is Builders Association of India and Ors. v. UOI 1989 (SCC) GJX 212-SC which is being buttressed for the argument in support of the department's case. The answer to the department's case is mentioned in paragraph 32 of the said judgment. It mainly deals with the constitutionality of the 46th amendment and also the effect of the new definition introduced under Clause (29-A) of Article 366. That is not the point for our consideration before us. The question decided by the Supreme Court in that case is absolutely irrelevant for the purpose of consideration of the questions arising in this case. The incidence of sale of goods in the works contract has been discussed by the Supreme Court in the appeal filed by the State of Madras against the decision of the Madras High Court in the case of Richardson Cruddas. The Supreme Court in the case of an appeal filed by the State of Madras against the said judgment has dismissed the appeal filed by the State of Madras reported in 21 STC 245.
15. The other question regarding the same question of marketability is dealt with the department by the introduction of a letter dated 21.3.2002 written by Stresscrete India Ltd. filed in Application 277/02 which we allow. The said letter is reproduced below:
"SIL/CE/351 21/03/2002
To
The Superintendent
Central Excise & Customs
Khopoli Range III
Khopoli.
Sir,
Ref: Our Registration No. AAA CS 5180 JXM 001
Sub: Pre Case Girders.
We are the holder of Central Excise Registration No. AAA CS 5180 JXM 001 for the manufacture of Excisable goods i.e. Girders, column Post, steps, Pathway Slab, Slab/Block. Arch, Beam/Rails falling under Central Excise Tariff heading No. 6807.90. Concrete Cabin falling under Central Excise Tariff Heading No. 9406.00 and Pre-Cast Components for Concrete Cabins falling under Central Excise Tariff Hearing No. 6807.20.
The below mentioned details are about the fabrication and dispatch of Pre Cast Girders for Road Over Bridges and Fly-over Bridges depending the orders received from the clients through our Head Office. Mostly the size and weight of the Girders varies form design and drawings according the to the requirement.
The above Girders are made of from Steel Rebars, Cement and aggregates as per design proportion. Upon casting these types of Girders are being transported to various destinations as advised by HO by means of Trailers or Trucks as per the volume (Cubic Meter) or weight of the Girders, on payment of Central Excise Duty. The destination point from the factory to the various sites in and around are 45 to 80 kilometres. (i.e. Vashi, Tane, Joggeswari, Dahisar etc.) This is not regular item fabricating and keeping in stock, where as we cast these sort of Girders as per the requirement advised to us by our HO depending orders received from Clients. The length of the Girders varies from client to client and to state that during the period from April 2000 to till date we have fabricated the Girders having the length 12 to 18 Meters.
Further it is to state that the cost of the Girders will be varying from design to design. The cost of each Girder is arrived by cost construction methods:- Cost of Raw Materials, Labour Charges, Overheads, and Profit Margins. How ever it is to clarify that our Invoice No. 002 dated 3/4/99, Inv. No. 003 dated 4/4/99, No. 004 dated 4/4/99 and 006 dated 5/4/99 shows the value of each Girder and the volume in Cubic Meter shown in the "Total Qty" is only for arrangement of transportation.
The sketches and figures of the various sites and literature pertains to manufacture has been enclosed herewith.
Yours faithfully, For Stresscrete India Limited Sd/-
General Manager (Factory)."
16. The dimensions of those bridges and how they are compatible and comparable with the girders in question have not been given here. The annexure to the show cause notice specifically mentions that the girders are of the weight of 75 to 90 tons. Whether such types of girders mentioned in Stresscrete India Ltd.'s letter are bought and sold cannot be easily deduced from the letter. It only states that it is not a regular item for fabricating and keeping in stock. It is only done as per the requirement depending upon orders received from clients. The girders which they have done are only for 12 to 18 metres. How much of girders they have done is not clear. The invoices filed by them show that some were sent by the company to itself only and it does not say that they have been sold to any party. Therefore it is difficult for us to state that the goods can be sold even if we assume the girders mentioned in the letter of the said company would be matching with the girders mentioned in the assessee's case.
17. This takes us to another aspect of the case namely the applicability of the manufacture of RCC poles supplied to the various Electricity Boards. The leading case is the judgment of the Supreme Court in A.P. State Electricity Board v. CCE 1994 (70) ELT 30. In the said case, it was evidence before it that in the appeals before the Hon'ble Court the fact that in Kerala these poles were manufactured by independent contractors who sold them to that State's Electricity Board showed that such poles had market. In the case before us what do we have? Specific pleas have been made by KRCL as well as the appellant in reply to the show cause notice about the non-marketability of the goods namely girders. The annexure to the show cause notice only states in paragraph 5 that the girders are manufactured and it is further used in the manufacture of bridges and in paragraph 5.1 the girders were purchased by KRCL. We have already found that the contract is not for production and sale of girders but the construction of bridges. When that is the bargain between the parties, it is not possible for us to say how the department can state that there had been creation of a movable property namely girders and how it is goods within the meaning of Section 2(h) of the Central Excise Act viz. sale and purchase of the goods. Excisable goods means, in terms of the provisions of Clause (d) of Section 2, goods specified in schedule to the Central Excise Tariff Act. The department's case falls under item 6807 which is for all articles of stone, plasters, cement, asbestos, mica or similar material not elsewhere specified. No doubt in the case of Pratibha Industries Ltd., the Tribunal in Appeals E/1134/92 and E/1642/95 has held notifications 61/90 and 59/90 applicable.
18. That takes us to another aspect of the matter whether the appellant is entitled to claim the benefit of the notifications 59/90 and 52/95. The Tribunal in various judgments in the cases of Delhi Tourism & Transport Devep. Corporation v. CCE 1999 (35) RLT 139 has held that the assessee is entitled to claim exemption under the said notification. The said judgment of Delhi Tourism & Transport Devep. Corpn. has been followed by the SRB in the case of Transport Equipment and Construction Co. 2000 (92) ECR 604 which dealt with RCC boxes and slabs. The item in Pratibha Industries's case stone water drains. The item in Delhi Tourism & Transport Devep. Corpn.'s case is girders for flyovers. There also it came into existence at another site. In the instant case also the assessee has pleaded, of course, in an alternative way that notification 59/70 would be applicable. Even if it is held that the girders are goods, we have to hold that the notification 59/70 would be applicable because the period is from June 1992 to 30th March 1994. This we hold in favour of the assessee in respect of the alternative plea made by the assessee. The notes of arguments submitted by the learned DR refer to various case laws in respect of the exemption notification. In view of the fact that we have held that girders in question are not goods within the meaning of Central Excise Act, we do not think it necessary to deal with the case laws cited by the learned departmental representative.
19. As far as the limitation is concerned, since we have held in favour of the assessee, it is not necessary for us to give our views. We do not deal with each and every argument by the assessee as we feel it is not necessary to decide the case.
20. Appeal stands allowed and the impugned order set aside, with consequential relief, if any, according to law.