CCE Vs. ISPAT ALLOYS LTD. (BALASORE ALLOYS LTD.)

JUDGEMENT

(1.) THIS appeal has been directed against the order of the Collector of Central Excise (Appeals), Calcutta, made on 19.10.1992, setting aside the Order -in -Original made by the Assistant Collector on 29.06.1990 rejecting the refund claim of Rs. 8,12,494.98 on the ground that the fabricated structural items were clearly identifiable as excisable goods and classifiable under Heading 7308.90 attracting duty @ 15% Basic and Special Excise Duty @ 5% of Basic Duty, which was, according to the Assistant Collector, paid correctly as per the approved Classification List. The Collector (Appeals) came to a finding that, the resultant products, like Trusses & Purlins by cutting, jointing, welding etc., and iron & steel items in the course of construction and erection of factory shed, did not amount to manufacture. The Collector (Appeals) relied upon the ratio of the decision in Pratap Rolling Industries Ltd. v. Collector of Central Excise reported in , in which the decision in Aruna industries v. Collector of Central Excise reported in, 1990 (25) ELT 580 (T), was relied on for holding that, the supply of steel to contractor for fabrication and erection of shed within the factory brings into existence an immovable property which is neither 'goods' nor 'products' and, therefore, not excisable. It was held that, the judgments which were applicable to the steel structures under erstwhile Tariff Item 68 were applicable to the new Tariff sub -heading 738.90, so long as there was no specific mention of structurals in this Tariff itself for the purpose of excisability.

(2.) THE learned Counsel for the respondent/assessee appearing in this appeal, which is preferred by the Revenue, filed a note on 17.07.2006 and requested us that the appeal may be disposed of by taking into account the respondent's written note and that the respondent/assessee did not want to be personally heard. Along with this note, the learned Counsel had placed on record written submissions, with our permission, stating that the matter may be decided on the basis of the written submissions.

(3.) THE respondent/assessee has paid Central Excise Duty under protest during the period from 30.04.1989 to 09.05.1989 on the fabrication of structures at site, such as, columns, beams, bracings, bins and supporting structures, smock stack and tanks. The refund was claimed on the footing that these fabrications at plant site did not amount to manufacture and that these fabricated structures were not marketable. A show cause notice was issued on 29.12.1989 to the respondent/assessee stating, as to why the refund of said amount of Central Excise Duty claimed by them should not be rejected. It was alleged in the show cause notice, that the fabricated structural items under reference were clearly identifiable as excisable goods which were capable of being bought and sold, and hence the duty was lawfully paid on such items.