Asian Foundations and Constr. Ltd. Vs. Cce

Asian Foundations and Constr. Ltd. vs Cce

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided May 14, 2003

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Citation: sooperkanoon.com/30922
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: S Kang, a T V.K.
Decided On: May 14, 2003
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Asian Foundations and Constr. Ltd.

Respondent

Cce

Legal References

Reported In: (2003)(88)ECC70

Excerpt

.....duty only in respect of caisson gate which is a part of the dry dock. the demand in respect of other caisson gate constructed by the appellants was dropped by the commissioner of central excise, viskhapatnam vide order dated 31.10.2002. this fact is not disputed by the revenue.9. the caisson gate is constructed at site step by step as part of the dry dock. there is no evidence on record that caisson gate is constructed at other place and later on brought to site. we find that hon'ble karnataka high court in the case of thungbhadra steel products ltd. v. union of india, 1998 (58) ecc 26 (kar.) : 1998 (89) elt 334 held that hydraulic gates of a dam are not excisable goods, as these are not marketable or capable of being marketable as such. further we find that hon'ble supreme court in the case of triveni engineering & indus. ltd. v. cce, 2000 (71) ecc 225 (sc) : 2000 (120) elt 273 (sc) relied upon by the appellants held that marketability test requires that goods as such should be in a position to be taken into the market and sold.10. the commissioner of central excise in the impugned order held that caisson gates are marketable as are being constructed by other firms also. the concept of manufacture is different from the concept of construction.11. for excisability the goods have to pass the test of marketability as laid down by the hon'ble supreme court in the case of triveni engineering & indus. ltd. v. commissioner of central excise, (supra).there is no evidence produced by the revenue to show that caisson gates are being marketed as such or being marketable as such. further, we find that the central board of excise and customs issued a circular dated 15.1.2002 after the above decision of the hon'ble supreme court.as per board's circular for the excisability the goods manufactured at site the goods should have new identity besides being marketability that is, they can be taken to market and sold in the present case as the caisson gate is not.....

Full Judgment

1. The issue involved in this appeal is in respect of the excisability of Caisson Gate of Dry Dock.

2. The appellants are engaged in the business of carrying out contract works of execution of specialised civil engineering works and undertake various types of constructions. The appellants secured a contract for the work of construction of dry dock at Visakhapatnam, The caisson gate is the part of dry dock and Revenue demanded duty in respect of caisson gate.

4. The contention of the appellants is that caisson gate is not goods as it has no independent existence. It is a integral part of dry dock which is an immovable property constructed as a civil works. The dry dock consists of three sides of walls and fourth side consists of the caisson gate. The caisson gate is on the sea side which will open to make entry of the vessels in the dry dock. When the vessels entered the dry dock, the caisson gate will be sunk to its place to create water-tight enclosure. The water from enclosure is pumped out into the sea to create dry enclosure. After the repair of the vessel the caisson is floated out to allow to vessel to go out. The caisson gate is made from steel and is constructed at site step by step. There is no evidence on record to show that caisson gate is marketable as such or being capable of marketed.

5. The contention of the appellant is also that they constructed another dry dock and a demand was also made in respect of the Caisson Gate and the Commissioner of Central Excise, Vishkapatanam vide order dated 31.10.2002 dropped the demand in respect of the Caisson Gate on the ground that the Caisson Gate are fixed structure and their construction of fabrication will be covered under the guidelines given in the Circular dated 15,1.2002 issued by the Central Board of Excise and Customs. These items specific in their nature and cannot be considered as goods so as to be bought and sold in the market.

6. The appellants also relied upon the decision of the Hon'ble Supreme Court in the case of Triveni Engineering & Indus, Ltd. v. CCE, 2000 (71) ECC 225 (SC) : 2000 (120) ELT 273 (SC) that the Caisson Gates are not marketable as such, therefore, not excisable.

7. The contention of the Revenue is that the Adjudicating authority in the impugned order held that the Caisson Gates are being constructed by various Firms, therefore, are marketable as such.

8. In this case the caisson gate which is under consideration is part of the dry dock. The Revenue is not asking duty on dry dock. The Revenue is demanding duty only in respect of caisson gate which is a part of the dry dock. The demand in respect of other caisson gate constructed by the appellants was dropped by the Commissioner of Central Excise, Viskhapatnam vide order dated 31.10.2002. This fact is not disputed by the Revenue.

9. The caisson gate is constructed at site step by step as part of the dry dock. There is no evidence on record that caisson gate is constructed at other place and later on brought to site. We find that Hon'ble Karnataka High Court in the case of Thungbhadra Steel Products Ltd. v. Union of India, 1998 (58) ECC 26 (Kar.) : 1998 (89) ELT 334 held that Hydraulic gates of a Dam are not excisable goods, as these are not marketable or capable of being marketable as such. Further we find that Hon'ble Supreme Court in the case of Triveni Engineering & Indus. Ltd. v. CCE, 2000 (71) ECC 225 (SC) : 2000 (120) ELT 273 (SC) relied upon by the appellants held that marketability test requires that goods as such should be in a position to be taken into the market and sold.10. The Commissioner of Central Excise in the impugned order held that caisson gates are marketable as are being constructed by other Firms also. The concept of manufacture is different from the concept of construction.

11. For excisability the goods have to pass the test of marketability as laid down by the Hon'ble Supreme Court in the case of Triveni Engineering & Indus. Ltd. v. Commissioner of Central Excise, (Supra).

There is no evidence produced by the Revenue to show that caisson gates are being marketed as such or being marketable as such. Further, we find that the Central Board of Excise and Customs issued a Circular dated 15.1.2002 after the above decision of the Hon'ble Supreme Court.

As per Board's Circular for the excisability the goods manufactured at site the goods should have new identity besides being marketability that is, they can be taken to market and sold in the present case as the caisson gate is not marketable or capable of being marketed as such, therefore, are not excisable. Hence, the impugned order is set aside and the appeal is allowed.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Asian Foundations and Constr. Ltd. vs Cce Same Subject Excise Same Judge S Kang, a T V.K.