2001 (10) TMI 338

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....achines and parts thereof which are cleared by them on payment of duty; that they sometime get Orders for erection and installation of weigh brigde at the site of customers according to their specifications and dimensions; that M/s. Virender Agro Chemicals Ltd. placed on Order with them for erection of one number of electronic weigh bridge Pit type, 30 TX 5 kg. capacity having platform size 9m x 3m with industrial terminal printer; that the said Order was executed by first sending the parts/components of weigh bridge manufactured by them on payment of duty; that pit was dug up to a depth of approximately 8 to 9 feet deep, concrete foundation was made on which pillars made of concrete and reinforcement bars were built by the Customer; load c....

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....E.L.T. 273 (S.C.) = 2000 (40) RLT 1 (S.C.) wherein it was held that Turbo-Alternator was immovable. He also mentioned that the finding of the Commissioner (Appeals) in the Impugned Order, that electronic weighing bridge can be dismantled, sold and reinstalled is arbitrary and without placing any evidence on record; that in fact the concrete foundation has to be broken for taking out the load cell basis, load cells, platform etc.; that the ratio of the decision in the case of Sirpur Paper Mills v. C.C.E., 1998 (97) E.L.T. 3 (S.C.) is not applicable. He relied upon the decisions in following cases : (i)      JST Service Engineering Services CCE, 2001 (133) E.L.T. 350 (T) = 2001 (46) RLT 1 (CEGAT) (ii) &nbsp....

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....reme Court in the case of Narne Tulaman Manufacturers Pvt. Ltd. v. C.C.E., Hyderabad, 1988 (38) E.L.T. 566 (S.C.) = 1989 (20) ECR 129 (S.C.) has settled the same by holding that as a result of assembly, a new product known in the market and known under the excise item "weigh bridge" comes into being and the appellant will become a manufacturer of that product and as such liable to duty. On the question of marketability, the learned S.D.R. submitted that what are being embedded into concrete foundation are steel plates and not the machines so that the weigh bridge functions properly and with a view to avoid any damage to the system. He relied upon the decision in the case of TTG Industries Ltd. v. C.C.E. Raipur, 1996 (82) E.L.T. 517 wherein ....

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....rketability. The Supreme Court itself observed in Mittal Engineering Works (P) Ltd., supra, that "The contention that weigh bridges were not goods" within the meaning of the Act was not raised and no evidence in that behalf was brought on record ............. A decision cannot be relied upon in support of a proposition that it did not decide". The Constitutional Bench of the Supreme Court in C.C.E., Jaipur v. Man Structurals Ltd. - 2001 (130) E.L.T. 401 (S.C) = 2001 (44) RLT 113 (S.C.) has held that it is to be determined whether the structurals that the Department sought to make exigible to excise duty "were new, identifiable goods which were produced as a result of manufacture or process and which are marketable". Thus the test of marketa....