Full Judgment
2. Application E/3048/98 is for waiver of deposit of duty of Rs. 46.50 lacs on M/s. Geo-Tech Foundation and Construction redemption fine of Rs. 5.00 lacs and penalty under Section 11 AC equal to the duty.
3. The common representative for both the applicant says that the duty has been demanded on the ground that reinforced cement concrete girders manufactured being to the contract manufacture by each of the applicants are liable to duty. He says that these girders were manufactured at site during period April, 1994 to February, 1996 by each of the applicant who were contractors to Konkan Railway Corporation Ltd. They were manufactured in fulfillment of a contract for building bridges on the railway line. He contends that it was never the intention to manufacture excisable goods and the girders have been utilised in construction of the bridges. Hence no duty is payable. He further contends that at the relevant time Notification 36/94 was in force, which exempted from duty goods falling under Heading 68.07 of the Tariff manufactured at the site of construction of buildings for use at such site. This Notification was amended on 16-3-1995 by Notification No. 51 /95. The effect of the amendment was to exempt from duty goods manufactured at the site of construction for use in construction work at such site. This amending notification is clarificatory and therefore retrospective in operation. He cites in support of this preposition, the letter dated 2-5-1995 of the Board to the Chairman of the Konkan Railway Corporation Ltd. He further contends that duty in any event will be payable by Konkan Railway Corporation.
4. Departmental Representative contends that each of the case law cited in favour of first preposition is entirely irrelevant. Liability to extent excess duty is not contingent of intention. If excisable goods have been manufactured the liability to duty will not arise. He further contends that the amending notification cannot be considered to be retrospective, since enlarges the scope of the earlier notification.
5. The letter to the Konkan Railway Corporation Ltd. does not have anything to in it suggest that the amending notification is clarificatory of the earlier one. It merely says that the notification have been issued. The fact that the goods were manufactured in pursuance of contract for bridges, buildings does not impinge upon their liability to duty and the case law cited extensively is entirely relevant. We are also not of the view prima faice that Notification 51/95 that clarifies Notification 36/94. Extensive changes are made to that notification. Serial No. 2 that the earlier Notification is omitted as item (CC) on Serial No. 1. In these circumstances we are unable to waive the deposit of duty. However, prima facie penalty under Section 11 AC would not apply in the present case, the goods have been manufactured before the section was enacted.
6. We, therefore, direct each of the applicant to deposit the duty demanded within two months from the receipt of this order. Upon compliance reported on such deposit, we waive deposit of the penalty imposed and redemption fine for plant and machinery and stay their recovery.