Judgment:
1. The duty demand in the present case is of Rs. 55,91,471/- on pre-stressed concrete girders supplied by M/s. Asia Foundations and constructions Limited to M/s Konkan Railway Corporation Limited. The adjudicating authority has also imposed penalty of amount equal to duty the manufacturer and penalty of Rs. 25 lakhs on its Deputy Managing Director. Hence these appeals.
2. On hearing both sides we note that in their own case vide order No.CB/603 to 605/WZB/2004 dated 16/03/2004 the Tribunal has allowed the appeals of the appellants against the order of the Commissioner of Central Excise dated 29th June, 1998, confirming duty demand and imposing penalty. The Tribunal followed the order in the case of B.E.Billimoria & Co. Pvt. Ltd., Order No. CII/890-91/WZB/2003 dated 25/04/2003 wherein the bench had held that the girders in question were not goods within the meaning of Central Excise Act, 1994.
3. Learned SDR brings to our notice Tribunal's order in the case of Delhi Tourism & Transportation Development Corporation Vs CCE, New Delhi 1999 (114) ELT 421 wherein it was held that cast beams/girders which was fully cast and then transported to site were goods liable to duty but entitled to exemption from duty in terms of Notification 59/90-CE dated 20/03/1990 vide serial No. 7 of table annexed thereof.
Therefore whichever way we look into the matter, either from the point of view that he items are not 'goods' within the meaning of Central Excise Act, or although excisable goods, are covered by the benefit of exemption under the Notification 59/90-CE, the end result will be same, namely, confirmation of duty liability is not sustainable. We therefore set aside the duty demand and the penalties, demanded and imposed in the present case and allow the appeals. We make it clear that this order is confined to the facts of the present case.