Customs, Excise and Gold Tribunal - Mumbai
Afcons Infrastructure Limited vs Commissioner Of C. Ex. on 23 August, 2004
Equivalent citations: 2004(173)ELT430(TRI-MUMBAI)
ORDER Jyoti Balasundaram, Member (J)
1. This appeal is filed against the order of the Commissioner of Central Excise, who has confirmed a duty demand of Rs. 2,62,336.95 against appellants on the ground that they manufactured barge i.e. Pontoon named "AF-BP-ROSE" and also imposed penalty of Rs. 10,000/- upon them.
2. We have heard both sides. We find that in response to tender dated 14-10-1985 floated by the Metropolitan Transport Project (Railways), the appellants submitted its quotation, which was accepted and the order was placed on the appellants for design and construction of a Double Track Broad Gauge Railway Bridge across the Thane Creek near Bombay. The Metropolitan Transport Project Railways agreed to supply them structural steel. For the construction work specialised machinery and floating cranes for use in the creek were required and the crane had to be mounted on special barges stationed in the creek. The barge was of a special type and had to be specially designed. The appellants placed order with M/s. Sadanand Engineers for the manufacture of barge and the barge was fabricated by M/s. Sadanand Engineers. Prior to passing the present impugned order, the Commissioner had passed an order in 1988 confirming demand of duty and imposing penalty, which was challenged by the appellants before the Tribunal which by its Final Order No. E/4/98-B, dated 16-12-1997 in Appeal No. E/3205/88B remanded the case to the adjudicating authority for recording the findings on the issue of marketability of the barge. The present order has been passed as a result of the remand order.
3. The contention of the appellant that the barge is not marketable for the reason that it is specially designed only for a particular customer is not acceptable, as it is not necessary that goods should be available for more than one customer in the market in order to satisfy marketability test. Even when the goods are available only for a particular customer, such goods are marketable, as they are available for purchase. We, therefore, uphold the findings that barge in question is "goods" for the purpose of levy of excise duty. However, the question as to who is liable to pay the duty, remains to be answered, in view of the fact that, in the case of barge got fabricated by the same appellants from another job worker, M/s. Bright Engineers, the Tribunal by the Final Order No. E/1461/97B, dated 10-10-1997 in appeal No. E/1928/88B has held that the appellants are only the suppliers of raw materials and the work was carried out by M/s. Bright Engineers and therefore, the appellants are not the manufacturers of the barge. The Tribunal set aside the order of the Commissioner demanding duty on the barge from the appellants and allowed the appeal.
4. Unfortunately, in this case we are unable to come to a conclusion as to who is the manufacturer, as this issue has not been discussed in the impugned order and not raised in the present appeal (although the appellants have mentioned in their appeal that the issue as to who is the manufacturer was raised in earlier proceedings before the Tribunal order). Therefore, while upholding the findings of adjudicating authority that barge is liable to duty, we remand the case to the jurisdictional Commissioner for decision on who is the manufacturer of the barge and from whom duty can be demanded. The aspect of penalty is also to be considered afresh by the Commissioner.
5. The appeal is disposed of in the above terms.