ORIENTAL CONSTRUCTION CO. Vs. COMMISSIONER OF CEN. EXCISE

JUDGEMENT

(1.) THE above appeal arises out of the order of the Commissioner of Central Excise, Pune, confirming duty demand of Rs. 21.22.271/ - on 33 numbers of Prestressed concrete girders (hereinafter referred to as PSCG) launched and fixed on the bridge constructed across the river Vashishthi near Chiplun in Ratnagiri District during the period 1.1.92 to 31.3.94, on the ground that the girders were (SIC) goods falling for classification under CET sub -heading 6807.90 , together with interest under Section 11AB, invoking the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, confiscating the girders under Rule 173Q read with Rule 226 of the Central Excise Rules with option to redeem the same on payment of fine of Rs. 3 lakhs, and imposing penalty equal to duty under Section 11AC.

(2.) WE have heard both sides. We find that the girders were cast in separate yards, transported from the casting yards to stacking yards and thereafter shifted to the site at piers and then fixed and launched thereon, although, girders can be cast on site i.e. on the top of the piers themselves. The issue of excisability of this very same item has been considered by the Larger Bench in the case of Asian Techs Ltd. v. CCE, Pune , wherein it has been held that PSC girders manufactured in casting yard and then removed from there for being launched on sub -structure i.e. piers are excisable goods under Heading 68.07 of the Schedule to the CETA 1985. The excisability of similar item viz parts of iron/steel structures falling under Heading 73.08 such as Truss, has been settled by the decision of the Larger Bench in Mahindra and Mahindra Ltd. v. CCE, Aurangabad holding that these are excisable goods under Heading 73.08. Both decisions followed the Apex Court decision in A.P. State Electricity Board v. Collector In the case of Mahindra and Mahindra Ltd. cited supra, the Bench has distinguished the Tribunal's decision in Aruna Industries v. Collector 1996 (25) ELT 580 in which it was held that fabrication of structures at the construction site cannot be considered as fabrication work done in a factory for the purpose of levy of excise duty and has referred to the Apex Court decision in Wainpanga Sahkari S. Karkhana Ltd. v. CCE 2002 (50) RLT 177 upholding the Tribunal's decision in Aruna Industries on the ground that the Aruna Industries' decision was found to be applicable to a situation where an assessee was erecting structures at the construction site and fabricating materials on the spot, whereas, in the case before the Larger Bench, parts of iron/steel structures were manufactured at Nasik and then transported to erection site. The relevant paras of the Mahindra and Mahindra Ltd order relating to the discussion on Aruna Industries are reproduced below:

(3.) THE Mahindra and Mahindra decision also deals with the issue of marketability in paragraph 13.1 which is reproduced below: