TaxTMI 
TaxTMI 
TaxTMI 
2009 (9) TMI 403
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....evenue to the appellant requiring to show cause as to why exemption should not be denied to them since the conditions in the Notification No. 58/03-C.E, have not been fulfilled. Besides demand of duty with interest, penalty was also proposed under Section 11AC of CEA, 1944. After adjudication process, the impugned order has been passed whereby the duty demand for Rs.89,80,600/- with interest as applicable has been confirmed and a penalty equal to duty amount has been imposed under Section 11AC of CEA, 1944. The Commissioner in the impugned order also negated the claim of the appellant that there was no manufacture of the goods in the factory and the goods manufactured by them were not at all excisable and held that if the exemption under Notification No. 58/03 was not available, they were liable to pay the Excise duty on the goods. 3. Learned advocate on behalf of the appellant submitted that the appellant had a bona fide belief that the goods sent to CWC were exempted under Notification No. 58/03 and accordingly they had supplied the same. As soon as they were advised by the department that they were not eligible for exemption, they had surrendered all the original ARE-1 forms us....
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....me description has been shown and nowhere it has been mentioned that the goods were parts of columns, portals, canopy, or truss. He submits that the department took up the issue in May, 07 when appellant failed to submit evidence to show that they have fulfilled the conditions of Notification No. 58/03. The clearance of the goods was completed by that time and all of them had reached CWC premises. Therefore, there was no way to department could have verified the actual position and further there is no basis or support in the form of document or evidence submitted by the appellant to show that the goods were different compared to invoices prepared by them. 5. We have considered the submissions made by both sides. Admittedly, the appellant cleared the goods under ARE-1 claiming benefit of exemption Notification No. 58/03 during the period from Dec., 06 to Feb., 07. The notification No. 58/03 exempts all excisable goods produced/manufactured by a unit from whole of the duty of Excise leviable, when cleared to unit in SEZ subject to the following conditions: (i) that such goods are removed from the factory or warehouse, as the case may be, in accordance with the procedure specified i....
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....t it is the Commissioner's finding that in ARE-1 as well as invoices, the description of the goods given was 'columns, portal, canopy, truss. The Commissioner has also said that he has gone through all the ARE-1s and invoices. In the appeal memorandum submitted by the appellant, not a single copy of ARE-1s or invoices has been submitted. In the appeal memorandum, the appellant has stated that in the ARE-1, they had mentioned as "Supplying at site steel work in built up square and rectangular closed hollow sections structures, trusses including cutting, welding and applying a priming coat of approved steel primer welded and bolted including special shape washers etc." instead of mentioning steel plates in the ARE-1s. The submission of the appellant is that ARE-1 did not represent identity of the goods but the same was shown for ease of understanding further activity at the site. The explanation given by the appellant is not at all convincing. The invoices issued by the appellant covers the goods while being transported from the factory to the CWC. Therefore, it is normal and appropriate to assume that the correct description of the goods would be given in the invoice. It has to be n....
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....tarts with the words "Supplying at site, steel work in built up square and rectangular closed hollow sections structures". In this case also, in terms and conditions, it has been stated that all materials will be received at site as per specifications and in sound condition. 12. When we look at the work orders and ARE-1 and invoices, they are in harmony with each other. Nowhere, the work order or contract speaks of fabrication at site. The order is for supply and not for fabrication at site. The certificate issued by the CWC is also carefully worded and certificate says clearly that the appellants have completed the work as per the work order. It has to be noted that both the work orders include several items whereas certificate covers only two items. Therefore, the certificate issued by CWC is not of any help to the appellant in the face of document and records which are clearly against their claim. 13. Learned advocate relied upon several decisions of the Tribunal. In CCE, Hyderabad v. M/s. Deepak Galvanising Engg. Indus. P. Ltd., 2008 (228) E.L.T. 40 (Tri.-Bang.), the Tribunal held that cutting of duty paid angles, rods, channels, plates as per specification and then drilling ....
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.... into existence through fabrication as per the predetermined design to be fitted into the structure that is to be raised. For example, roof frame may be fabricated for the roof structure of a shed. Such fabrication of frames may be done at the construction site or at some factory premises. The iron and steel frames fabricated at the factory premises away from the site of construction would be brought to the site for their use in erecting the structure. The frames prefabricated and brought at the site and frames fabricated the site of erection both are goods manufactured. There will be variety of parts of structures of iron and steel, that can be fabricated either at the site or at some factory premises away from the site. The iron and steel raw material, such as angles, plates, tubes, etc., are used in making parts of structures and they acquired a distinctly different shape to suit the structural designs. For example, if iron or steel angles and plates are cut to make a steel table or chair which can be dismantled, it cannot be said that there are no goods manufactured because the iron and steel angles or plates remain such angles and plates though of different sizes, and merely h....