1. The above appeal arises out of the order of the Commissioner of Central Excise, Pune, confirming duty demand of Rs. 21.22.271/- on 33 numbers of Prestressed concrete girders (hereinafter referred to as PSCG) launched and fixed on the bridge constructed across the river Vashishthi near Chiplun in Ratnagiri District during the period 1.1.92 to 31.3.94, on the ground that the girders were (SIC) goods falling for classification under CET sub-heading 6807.90 , together with interest under Section 11AB, invoking the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, confiscating the girders under Rule 173Q read with Rule 226 of the Central Excise Rules with option to redeem the same on payment of fine of Rs. 3 lakhs, and imposing penalty equal to duty under Section 11AC.2. We have heard both sides. We find that the girders were cast in separate yards, transported from the casting yards to stacking yards and thereafter shifted to the site at piers and then fixed and launched thereon, although, girders can be cast on site i.e. on the top of the piers themselves. The issue of excisability of this very same item has been considered by the Larger Bench in the case of Asian Techs Ltd. v.CCE, Pune , wherein it has been held that PSC girders manufactured in casting yard and then removed from there for being launched on sub-structure i.e. piers are excisable goods under Heading 68.07 of the Schedule to the CETA 1985. The excisability of similar item viz parts of iron/steel structures falling under Heading 73.08 such as Truss, has been settled by the decision of the Larger Bench in Mahindra & Mahindra Ltd. v. CCE, Aurangabad holding that these are excisable goods under Heading 73.08. Both decisions followed the Apex Court decision in A.P. State Electricity Board v.Collector In the case of Mahindra & Mahindra Ltd. cited supra, the Bench has distinguished the Tribunal's decision in Aruna Industries v. Collector 1996 (25) ELT 580 in which it was held that fabrication of structures at the construction site cannot be considered as fabrication work done in a factory for the purpose of levy of excise duty and has referred to the Apex Court decision in Wainpanga Sahkari S. Karkhana Ltd. v. CCE 2002 (50) RLT 177 upholding the Tribunal's decision in Aruna Industries on the ground that the Aruna Industries' decision was found to be applicable to a situation where an assessee was erecting structures at the construction site and fabricating materials on the spot, whereas, in the case before the Larger Bench, parts of iron/steel structures were manufactured at Nasik and then transported to erection site. The relevant paras of the Mahindra & Mahindra Ltd order relating to the discussion on Aruna Industries are reproduced below: 11.3, The residuary Tariff Item 68 as it existed at the relevant time and the exemption notification No. 46/81-CE., dated 1.3.1981 which granted exemption from the whole of the excise duty to the goods other than manufactured in "factory" as defined in Section 2(m) of the Factories Act which were relevant for the decision in Aruna Industries (supra) are reproduced below: "All other goods, not elsewhere specified, manufactured in a factory hut excluding - (a) alcohol all sorts including alcoholic liquors for human consumption: (c) dutiable goods as defined in Section 2(c) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955.
Explanation - In this item, the expression "factory" has the meaning assigned to it in Section 2(c) of the Factories Act, 1948. (Emphasis added).
Exemption to goods other than the goods manufactured otherwise than in a factory. - In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 85/79-Central Excises, dated the 1^st March, 1979, the Central Government hereby exempts all goods, falling under Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944, other than goods manufactured in a factory, from the whole of the duty of excisable leviable thereon: provided that nothing contained in this notification shall apply to sandal wood oil.
Explanation - In this notification, the expression 'factory' has the meaning assigned to it in Clause (m) of Section 2 of the Factories Act, 1948 (63) of 1948.) 2. This notification shall come into force with effect from the 1st day of April, 1981].
[Notification No. 46/81-C.E., dated 1.3.1981 as amended by Notification No. 92/81-C.E. dated 1.4.1981 and No. 74/83-C.E.dated 1.3.1983.] It is the above exemption notification on the basic of which structural in Aruna Industries and group of other appeals which were fabricated at the site of the construction and not any factory as defined in Section 2(m) of the Factories Act, were found to be not liable to excise duty. The definition of the word "factory" as given in Section 2(m) of the Factories Act, 1948, is reproduced below: (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on or; (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on - but does not include a mine subject to the operation of [the Mines Act, 1952 (35 of 1952)] (355 of 111952), or a mobile unit belonging to the armed forces of the Union, railways running shed or a hotel, restaurant or eating place.
[ Explanation 1 - For computing the number of workers for the purposes of this clause all the workers in [different groups and relays] in a day shall be taken into account] [explanation II - For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof.] 11.4 Thus, as per the Notification 46/81 dated 1.3.81 read with Tariff Item 68, the goods which were manufactured at the site of the construction i.e. otherwise than in a factory as defined in Section 2(m) were exempted from the whole of duty of excise leviable thereon which means that excise duty was payable only in respect of the goods manufactured in a "factory", as defined in Clause 2(m) of Section 2 of the Factories Act, 1948. The said notification which was issued in the context of Item 68 of the First Schedule to the Central Excises and Salt Act, 1944, no longer operated in the context of the provision of Heading 73.08 of the Tariff Act, 1985.
In other words, so far as the Tariff heading 73.08 is concerned, the said notification of exemption to the goods manufactured otherwise than in a "factory" as defined in Section 2(m) of the Factories Act, became wholly irrelevant and by virtue of the definition of the word , "factory" :n the Central Excise Act, excisable goods manufactured even on an open site were to be treated as manufactured in a factory. This will be clear from the definition of the word "factory" in Section 2(e) of the Central Excise Act, which is reproduced hereunder and which would be applicable in the context of the provision of the said Act"- "Section 2(e) - "Factory" means and premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on" 11.5 The decision in Aruna Industries(supra) was in respect of structurals manufactured in open site i.e. otherwise than in a factory as defined in Section 2(m) of the Factories Act, which were exempted from excise duty under the said notification issued in the context of the Tariff item 68. The First Schedule which contained Tariff 68 was omitted by Section 4 of the Central Excise Tariff Act, 1985. The ratio of the decision in Aruna Industries and all other decisions which have followed it has to be viewed in the background of the exemption notification issued in respect of goods manufactured otherwise than in a "factory" as defined in Section 2(m) of the Factories Act and the Tariff item 68 of the First Schedule which was omitted.
11.6 We may now refer to the contention that Aruna Industries has been affirmed by the Supreme Court in Commissioner pt Central Excise, nagpur v. Wainganga Sahakar S. Karkhana Ltd.(supra). The order made by the Supreme Court in Wainganga is reproduced hereunder : "Order: The Tribunal was concerned with whether making trusses, columns, and purlins amounted to manufacture. The Tribunal followed an earlier decision in Aruna Industries, Vishakhapatnam v. CCE, Guntur , it did not follow another decision in the case of Structurals and Machineries (Bokaro) Private Ltd. v. Collector of Central Excise . It is submitted on behalf of the Revenue that there are conflicting views taken by the Tribunal and that such conflicting vies have been taken even after the impugned order. In one of these subsequent judgments, in the case of Richardson & Cruddas (1972) Ltd. v. Collector of Central Excise , the case of Aruna Industries (supra) has been considered and found to be applicable to a situation where the assessee was erecting the structures at the construction site and fabricating materials on the spot; it was, therefore, found that this could not be considered to be fabrication in a factory. Now, in the instant case, the Tribunal noted that it had been found as a fact by the Collector that the assessee has undertaken fabrication work at site. This was a case, therefore, to which the decision of Aruna Industries(supra) applied and the Tribunal's order cannot be faulted."( Emphasis supplied).
It will be noticed that Hon'ble the Supreme court held that the decision of Aruna Industries applied to the case before it because it was found as a fact by the Collector that the assessee had undertaken fbrication work at site and not. in a factory. It is, therefore, obvious that the question whether fabrication work was done 'man open site or in a "factory", as defined in Section 2(m) of the Factories Act having become irrelevant in the context of Heading 73.03, the ratio in Aruna Industries would not on that count be applicable in respect of fabrication work done in an open site, having regard to the provisions of the said Act including the definition of "manufacture" in Section 2(f) and "factory" in Section 2(e) of the said Act read with Heading 73.08 of the First Schedule to the Tariff Act. it would, therefore, be incorrect to assume that the decision the Supreme Court in Man Structurals approves the ratio of the decision of the Tribunal in Aruna Industries on the question of manufacturing process involved, which arises in the context of heading 73.08 for decision by this Tribunal pursuant to these matters having been remanded by Hon'ble Supreme Court after setting aside the decisions earlier given in these appeals in which the ratio of Aruna Industries was followed.
3. The Mahindra & Mahindra decision also deals with the issue of marketability in paragraph 13.1 which is reproduced below: 13.1 Commodity character in the concept of marketable commodity is transitory relationship between the goods and the buyers. The goods during their passage, sometimes through several hands from the possession of the first into the possession of the last owner, are commodities, but, as soon as they have reached their economic destination in the hands of the ultimate consumer, they obviously cease to be marketable commodities and become " consumption goods" as opposed to the concept of "commodity". Differences in the marketability of commodities is phenomenon of a far reaching practical importance. Marketability of commodities has its own limitations. Marketability of goods is limited with respect to the persons to whom they can be sold. The owner of a commodity does not have the power to sell it to any person of his choice. The owner has no choice of selling his commodity to persons who have no requirement of it, who are prevented by legal or physical circumstances from purchasing it, or who have no knowledge of the availability of the offer. The marketability of commodities is also limited with respect to the area within which they can be sold. For a commodity to be sold in anyone place, it is also necessary that there must be a number of persons to whom it can be sold, that there be no physical or legal barrier to its transportation to that place or to its being offered there for sale, and that the cost and expenses of transportation shall not exhaust the gain that can be derived from the expected opportunity to sell. There are commodities, which as a result of spatially limited requirements for them, can be sold only in a single town or village, others that can be sold only in a few provinces, some only in a certain country, others in all civilized countries, and still others that can be sold in all the inhabited parts of the world. Again, the marketability of a commodity is restricted quantitatively to the requirements for it that have still to be met and the quantitative limits of marketability are remarkably different for different goods.
Commodities are also limited in their marketability with respect to the time periods in which they can be sold. Thus, there are goods for which requirements exist only in winter; others for which they exist only in summer; and in respect of perishable goods marketability gets restricted to a narrow time period. The marketability of commodities is restricted sometimes to greater and sometimes to smaller number of persons, and within sometimes narrower and sometimes wider spatial, temporal, and quantitative limits. Several factors limiting the marketability of commodities will have a multiple weight wherever commodities are transferred from hand to hand, from place to place and from one time period to another. Commodities whose marketability is restricted to a small number of persons, whose area of sale is limited, which can be preserved only for a short time, which can be brought to market only in strictly limited quantities at anyone time, or whose price are subject to fluctuations, etc, may all retain some degree of marketability within certain limits, but they are not capable of circulating freely. Moreover, commodities that must be specially fitted to the need of the consumer to the usable at all, are not saleable in equal degree in the hands of every owner. Thus, the concept of marketability in the context of marketability of parts of steel structures of the above nature falling under Heading 73.08 cannot be viewed through a hawker's eye. Hawking in its traditional sense, where the hawker moves with the goods screaming for the attention of potential customers, cannot be applied to the marketability of such structures or parts of structures, unless the concept of hawking itself is widened to include "E-hawing". The customer in the context of such product is the person who places the order for fabrication of such parts of structure to be raised by entrusting the contract to the manufacturer of such structural or by itself engages workers on job basis to get them manufactured. Such customers provide adequate marketability to the movable structures and parts of structures falling under heading 73.08 which remain excisable goods until they are permanently fixed to become part of some immovable structure. Therefore, in our opinion all the above items fall under Heading 73.08 are marketable commodities.
4. The contention of the ld. counsel that the Larger Bench decisions are per incuriam as they do not note the decision of the Bombay High Court in the case of Gannon Dunkerley & Co. and Sunflag Iron & Steel Co. Ltd. , is without merit as both decisions of the Larger Bench relied upon the Apex Court judgment in A.P. State Electricity Board supra for the conclusion of excisability of PSCG and other parts of steel structures.
5. In the light of the Larger Bench decisions cited above, we hold that the item in dispute in this case is excisable goods falling for classification under CET sub-heading 6807.90 and that the benefit of Notification No. 59/90 CE claimed by the appellants is not available to them in the light of the Tribunal's Larger Bench decision in Asian Techs Ltd. v. CCE, Pune 5. As regards the applicability of extended period of limitation, we note that the assessees did not disclose the activity of manufacture carried out by them either by declaration or otherwise. The plea that they cannot be held guilty of suppression in view of their bonafide plea based upon the judgment of the Tribunal in Aruna Industries cited supra, that the activity carried out by them did not amount to manufacture, is not tenable for the reason that, as noted by the Apex Court in CCE v. Wainganga Sahkari S. Karkhana Ltd. , the decision of Aruna Industries apply to a situation where the assessee was erecting the structures at the construction site and fabricating materials on the spot and in those circumstances, the Tribunal found that it could not be considered to be a case of fabrication in a factory. The Supreme Court has observed as above on the basis of Tribunal's decision in Richardson and Cruddas . We note that in the case of Structurals and Machineries (Bokaro) Pvt. Ltd. v. Collector , the Tribunal has held that steel structurals are different from steel plates and flats and process of manufacture is involved in converting M.S. Plates and flats into structurals. Therefore, the decision in Aruna Industries' case which was on fabrication at site does not advance their plea that the demand is barred by limitation. There is also no conflict of judgments on the issue as to whether fabrication of structurals at one spot which are subsequently moved to the site amounts to manufacture, as no judgment contrary to the one in the case of Structurals and Machineries on structurals fabricated elsewhere and then moved to the site, has been brought to our notice. It is also relevant to note that the assessee has specifically accepted the liability to pay duty on the goods in question, as seen from Clause (47) of the contract entered into between them and M/s. Konkan Railway Corporation Ltd, which has been noted by the Adjudicating Authority to hold that the appellants have suppressed vital facts from the department. In these circumstances, we hold that the appellants are guilty of suppression and that the extended period of limitation has been rightly invoked against them.