TaxTMI 
TaxTMI 
2008 (12) TMI 344
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.... duty of Rs.4,46,519/- under Section 11A. However, on adjudication, the Original Authority dropped the proceedings against the respondents with a finding that the pre-engineered building structures fabricated by the assessee, are components of a complete pre-fabricated building system, which when assembled at site bring into existence a pre-fabricated building. Revenue was aggrieved over the order of the Original Authority. Therefore, the Revenue approached the Commissioner (Appeals) for setting aside the order of the Original Authority and to classify the goods under chapter heading 73.08. However, the Commissioner (Appeals) after going through the facts of the case agreed with the decision of the Original Authority and dismissed the Revenue's appeal. Revenue is aggrieved over the impugned order of the Commissioner (Appeals) and therefore, has come to this Tribunal for relief. The grounds of the appeal of the Revenue are as follows: (a) Commissioner (Appeals) ought to have examined that issue in the light of explanation provided in Ch. Sub. Heading No. 7308.90 which is as follows: (b) Chapter Heading No. 73.08 includes Structures (excluding pre-fabricated buildings of head N....
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....ing etc. (e) Further, the Commissioner (Appeals) has erred in deciding the case in favour of the assessee, by ignoring the following case laws relied upon by revenue: (i) M/s. Amiya Corporation v. CCE, Calcutta-I reported in 1999 (113) E.L.T. 336 (Tribunal). (ii) M/s. Sagameshwar Pipe & Steel Traders reported in 2002 (141) E.L.T. 252 (Tri.). (iii) M/s. Arati Steels Ltd. v. Collector reported in 2002 (144) E.L.T. 360 (Tri.) (iv) M/s. Dhariwal Steels Pvt. Ltd. v. CCE, Cal-II - 1999 (112) E.L.T. 810(Tri.-Cal.) (f) The purchase orders placed by various customers for the impugned goods are as follows: S. No. Name of the Customer & Date of order Description of the goods ordered 1 M/s. Lloyds Insulations (India) Ltd., Chennai 11-4-2003 Supply, fabrication, primer painting, delivery of Pre Engineered Steel Structure at our site at export processing zone Kakand, Cochin, Kerala, as per design and drawing provided by us. 2 Vijayanand Constructions, Chennai dated 9-2-2004 14 Mts. Structural Steel to our drawings supply and erection at Chennai-Steel with one coat of red oxide primer 3 APP Mills Ltd., MR Palem. dated 24-1-2004 Design, manufac....
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....abricated buildings are defined as "Buildings components which are finished in the factory and are put up as elements cleared together, to be assembled on site such as housing or work site accommodation offices, schools, shops, sheds, garages or similar buildings as per customers' drawings and specifications." 5. The classification contended by the department is under 73.08 of CETA, which is reproduced below: 73.08 Structures (excluding pre-fabricated buildings heading 94.06) and part of structures (for example, bridge, and bridge sections, lock-gates, towers, lattice masks, roofs, roofing frame works, doors and windows and their frame and their holds for doors, shelters, Pillars and columns of Iron and Steel; Plants, Rods Angle, Shells sections and the like, prepared for use in structures of Iron and Steel. 7308.1000 Bridges and bridge sections 7308.20 Towers and lattice masks 7308.2011 Towers, whether or not assembled - for transmission line 7308.2019 Other 7308.2020 Lattice Masks 7308.3000 Doors, windows and their frames and thresh holds for doors 7308.4000 Equipment for scaffolding, shuttering, propping or pit-propping. 7308....
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....e expression pre-fabricated building, wherein it is clearly stated that building components, which are finished in the factory and are put up as elements cleared together, when assembled on site to form building should be classified under the said heading. 9. The burden of proof lies on the taxing authority to show that the particular item is taxable in the manner claimed by them, taxing authority should prove contrary to the evidence, when the claim of the assessee is supported by trade inquiries and certificates of the persons dealing in the subjected goods. 10. Revenue has not contended that the steel structures manufactured and cleared by the unit will not form a building. Their main contention is that structural components fabricated as per the specifications and designs of the customers cleared in unassembled stage will not fall under the chapter heading no. 94.06. However, when the orders are seen, it is clear that the order made by the buyer is only for pre-fabricated buildings. 11. Contrary to the findings, in the M/s. Amiya Corporation v. CCE, Kolkata-1, the appellants, evidently supply the panels of Walls and Roof and therefore, the ratio (adopted in the above c....