ORDER
Chittaranjan Satapathy, Member (T)
1. Heard both sides. The appellants have constructed bridges for M/s Konkan Railway Corporation Limited (KRCL) and in the process manufactured Pre Stressed Concrete (PSC) Girders and removed such girders from the site of manufacture for construction of the bridges on the railway. As regards the merits of the case, the (Larger Bench of the Tribunal in the case of Asian Techs Ltd. v. Commissioner of Central Excise, Pune-II) has held that such PSC girders are excisable and it has further held that exemption under Notification No. 59/90-CE applicable to goods manufactured at site for construction of buildings does not apply to PSC girders. The learned S.D.R. appearing for Revenue also brings to our notice the subsequent decision of another Larger Bench of the Tribunal in the case of Mahindra & Mahindra Ltd. v. C.C.E., Aurangabad, Chandigarh, Kanpur & Chennai which has extensively gone into the issue of manufacture, marketability and excisability of structural and has held that marketability of a product cannot be viewed through a hawkers’ eye and it has further held that when parts of structure are required to be used in the structure which is to be erected, the person ordering the raising of such structure provides an adequate market for such goods. In view of these two Larger Bench decisions of the Tribunal, we hold that the PSC girders in question meet the test of manufacture and marketability and hence they are excisable. We further hold that they are not eligible for exemption under Notification No. 59/90-CE following the ratio of Asian Techs (cited supra).
2. The learned advocate for the appellants has argued that earlier a show cause notice was issued on 27.1.1994 by the Superintendent and subsequently, it was withdrawn on 11.3.1996 and thereafter, the Commissioner has issued the impugned Show Cause Notice on 1.5.1996. Hence, he claims that there is no justification for invoking the longer period of limitation. In this connection, the learned S.D.R. points to the specific finding of the adjudicating Commissioner and also cites the decision of the three Judges Bench of the Hon’ble Supreme Court in the case of Dharampal Satyapal v. Commissioner of Central Excise, New Delhi to say that the extended period of limitation has been rightly invoked in this case. He also states that the appellants did not approach excise authorities at any stage for taking necessary registration nor did they comply with the excise rules pertaining to manufacture, removal and payment of duty. He further states that under the contract with KRCL, the appellants were obliged to discharge excise duty liability.
3. We find that the Show Cause Notice dtd. 27.1.1994 was issued to the appellants by the Superintendent of Central Excise, Ratnagiri Range demanding duty of Rs. 32,35,575/- in respect of 75 PSC girders valued at Rs. 1,61,77,875/-. However, this Show Cause Notice has been withdrawn by the Assistant Collector of Central Excise, Ratnagiri Division on 11.3.1994 (and not on 11.3.1996 as contended by the learned advocate) on the ground that the Show Cause Notice dtd. 27.1.1994 was issued without the approval of the proper authority or by the proper officer. It was also clarified therein to the appellants that the withdrawal of the said Show Cause Notice was without prejudice to any action including issue of fresh Show Cause Notice. Subsequently on 1.5.1996, a proper Show Cause Notice has been issued by the Commissioner himself demanding Central Excise duty amounting to Rs. 72,03,107/- on 75 PSC girders on a value amounting to Rs. 3,60,15,534/-.
4. The fact that an earlier Show Cause Notice was issued for the same number of PSC girders but for an incorrect amount and by an officer not competent to issue the same cannot thwart the proceeding arising out of a subsequent notice validly issued by the Commissioner himself since the same was issued within the time limit of 5 years. Moreover, the adjudicating Commissioner has recorded the following finding in regard to application of extended period of time:
As regards suppression of facts, the only plea taken by the assessee is that these activities were being carried out in the open and the Department knew about it. This is not acceptable as the Department is not supposed to enquire into each and every activity undertaken by the entire world and go into each aspect of durability. Under the law it is incumbent on the person undertaking manufacture to file a declaration about the activity undertaken by them and to ensure about the durability in case they are in doubt. In this case the noticees did not disclose their activities either by declaration or otherwise and therefore they have suppressed the information from the Department. It is further seen that there is nothing on record to show that the noticees have approached the jurisdictional Excise officers to enquire about the procedure to be followed by them in regard to the activities carried out by them particularly when excise liability was expressly accepted by them in the contract. In the absence of any such evidence, I hold that the notices have suppressed the facts from the Department.
5. We also find from the decision of the Hon’ble Supreme Court in the case of Dharampal Satyapal (supra) that where the assessee is in the business of manufacture and did not disclose the existence of manufacturing units, did not get their unit registered, did not maintain any record under the excise law and clandestinely manufactured excisable goods without informing the department, the department would be right in invoking the extended period of limitation. We find that the appellants M/s Larsen & Tourbo is a large company and are in the manufacturing business and the fact that they did not declare their manufacturing activity, did not obtain excise registration, did not maintain excise records and removed PSC girders from the place of manufacture without payment of excise duty and without excise documentation justifies the department invoking the extended period of time. We also find that in their reply dtd. 28.2.1994 to the earlier Show Cause Notice which was subsequently withdrawn, the appellants merely contested durability of the PSC girders but did not disclose any details regarding value of the PSC girders and dates of manufacture and clearance of the same. For issue of a valid Show Cause Notice the department has to ascertain these details which were not furnished by the appellants. As such, keeping these facts in view as well as the Hon’ble Supreme Court’s decision cited above, we are of the opinion that the demand of duty confirmed by the adjudicating Commissioner is not barred by limitation of time.
6. As regards the confiscation and penalty, we find that in the case of Asian Techs Ltd. (cited supra), the Larger Bench has not only answered the referred question relating to excisability of the PSC girders and applicability of exemption Notification No. 59/90 but has also decided the case upholding confirmation of demand, imposition of penalty and confiscation of the goods. We find that the impugned order in the present case and the impugned order in the case of M/s Asian Techs Ltd. are similar apart from having been passed by the same adjudicating Commissioner on similar grounds. Hence, following the decision of the Larger Bench in the case of Asian Techs Ltd. (cited supra) we confirm the duty demand, confiscation and penalty in this case also. As regards interest, the same has not been quantified. Hence, we direct the lower authority to quantify the same according to law after giving a reasonable opportunity of hearing to the appellants with regard to interest calculation. Appeal is disposed off in the above terms.
(Pronounced in Court on 16/2/06.)