ORDER
S.L. Peeran, Member (J)
1. This is a Revenue appeal against Order-in-Original No. 2/90 dt. 27.3.90 passed by Collector of Central Excise, Guntur holding that fabricated steel structurals are excisable commodity under Chapter sub-heading 7308.90. Hence, he has confirmed the duty demand of Rs. 13,46,781.23 from the respondents on 1512.683 MTs of Steel Structurals fabricated and removed during the period 1.7.86 to 6.3.89 under Rule 9(2) read with Section 11A of the C.E. Act, 1944. However, taking into account the various circumstances of the case, he has not proposed to impose any penalty on the respondents.
2. Revenue is only aggrieved with non-imposition of penalty on the respondents and in this appeal seeks for modifying the Commissioner’s order and imposing penalty in the matter.
3. Respondents are not represented in the matter.
4. Heard Ms. Aruna Gupta, Ld. DR who seeks for imposition of penalty in the matter.
5. On careful consideration of the submissions, we notice that the Tribunal in the case of Elecon Engg. has after due consideration of all the judgments including the Apex Court judgment has taken a view that fabrication of steel structurals does not bring into existence any excisable commodity. It has also held that merely because that steel structurals are mentioned under sub-heading No. 7308.90 that by itself would not make the goods excisable goods. However, this aspect of the matter is not agitated by the respondents by any cross appeal and, hence we refraine from giving any opinion on the confirmation of demands. As the Tribunal has already held the view that the said goods are not excisable, hence the question of imposing penalty on such goods does not arise. In that view of the matter, there is no merit in the appeal and hence same is rejected.