Customs, Excise and Gold Tribunal - Delhi
Cce vs Afcon Pauling Joint Venture on 9 November, 2004
Equivalent citations: 2005(180)ELT377(TRI-DEL)
ORDER
P.S. Bajaj, Members (J)
1. In this appeal, the Revenue have questioned the correctness of the impugned order in original of the Commissioner to the extent of dropping the duty demand in respect of Websols against the respondent.
2. The respondents are engaged in the construction of Flyovers and National Highways. They entered into three separate individual civil engineering contracts with the Government of Punjab (P.W.D) for four-laning of Highway No. 1 from Khanna to Doraha, Doraha to Ludhiana Byepass and Goraya to Jalandhar. They imported latest technology of Websol panels as approved by the Punjab PWD in substitution for the usual RCC retaining retaining as per the contract. They started casting and erection of websols are Sherpur (Ludiana) in September 1990 and completed in October, 1991. Thereafter, they started casting and erection of the goods at Chheheru (Phagwara) in April, 1992. They also installed the stone crusher for crushing of big stones into smaller stones for use in the construction of road alongwith other raw material.
3. They were served with a show cause notice raising duty demand on the crushed stones and the Wobsol panels for the period September, 1990 to February, 1994. In reply to the sow cause notice, they disputed the excisability and marketability of these goods and further alleged that the demand was time barred. But the adjudicating authority rejected their pleas and confirmed the duty demand vide order dated 25.10.94. But that order was challenged by them and the Tribunal set aside the same vide Final Order dated 16.12.99 and the matter was sent back to the adjudicating authority for fresh decision on the question of availability of benefit of Notification No. 59/90, marketability and excisability of the goods and application of the extended period of limitation for raising the demand. after the remand, the adjudicating authority had dropped the demand in respect of websol panels but confirmed regarding the crushed stones through the impugned order.
4. The respondents challenged the part of the impugned order confirming duty demand on the crushed stones against them by filing Appeal No. A/1319/03-NB. The Tribunal vide final order dated 14.01.2004, st aside that demand.
5. Regarding the dropping of the demand in respect of webols panels, the Revenue has come up in appeal which is now before us. The learned SDR has contended that neither the benefit of Notification No. 59/90 could be given to the respondents nor the wobsols manufactured by them could be said to be non-marketable and as such, the impugned order in this regard, deserves to be reversed.
6. On he other hand, the learned Counsel has reiterated the correctness of the impugned order.
7. We have heard both the sides and gone through the record.
8. We find that the sole ground on which benefit of notification No. 59/90-CE dated 20.03.90 providing exemption from payment of excise duty to the goods manufactured at the site of construction used for construction has been sought to be denied to the respondents, it that the websols were not manufactured by them at the site of construction. But in our view, the adjudicating authority has rightly not accepted this ground. The Government vide Notification No. 5/98 dated 2.6.98 has clarified that the restricted meaning to the word 'Site' is not to be given and it would included the site specified/mentioned in the contact/agreement for such construction work. It remains undisputed that the websols were manufactured by the respondents during the period in dispute at the site allotted to them under the contract by the Government (PWD Department) and thereafter used in the construction work. Therefore, the benefit of the above said notification has been rightly allowed to the respondents and we do not find any illegality in the impugned order in this regard passed by the adjudicating authority.
9. Regarding the non-marketability of the websols manufactured by the respondents, we are unable to disagree with the findings of the adjudicating authority. The websols had been manufactured by the respondents by using the raw material like cement, steel, and stones aggregates. Thee materials were mixed in a required proportions in a concrete mixture and then put in the moulds which were cured for about a couple of weeks. Therefore, websols were nothing but a sort of cement concrete structure in block shape having different dimensions depending upon the requirement, manufactured by the respondents. These websols could not be sued in any other place or for any other purpose except at the specified construction site, by the respondents. These had not marketability as such. That being so, the same could not be subjected to excisability. Therefore, the finding of the learned adjudicating authority in this regard are upheld.
10. In the light of the discussion made above, we do not find any illegality in the impugned order and the same is upheld. The appeal of the Revenue is dismissed.