TaxTMI 
TaxTMI 
1984 (9) TMI 288
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.... goods during the period 30-7-75 to 10-8-75 without payment of duty and also imposed penalty of Rs. 250.00 for breach of and under Rule 173Q. In this case, it appears that the appellants were charged with having cleared goods without payment of duty and without properly accounting the same and thus having committed breach of certain provisions of Central Excise Rules, 1944. 2. Appeal No. 2041/83-B is directed against order-in-appeal dated 21-6-1983, passed by the Appellate Collector of Central Excise, Bombay. In this appeal, the learned Collector, after the matter was remanded to him by the Tribunal by order No. B-62/83, dated 5-2-1983 held that items manufactured by the appellants and cleared from the factory will attract Central Excise duty and would be assessed accordingly. He thus upheld order dated 10-4-1978, passed by the Assistant Collector of Central Excise, Thane-Dn. II. By this order, the A.C.C.E. declined, to differ from the conclusion reached by A.C.C.E. Dn. Ill in according approval to appellants classification list. By the said list the appellants goods were classified as Items falling under T.I. 68. He has also held that it was obligatory on the part of the a....
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....the Tribunal having regard to the nature of the order but later stated as follows : "If the grievance of the appellant is regarding the part of proforma in which price list has to be filed (whether part II or part VI) it is submitted that so long as the quantification of the value for assessment purposes is not disputed at this stage before the Tribunal in fact, dispute does not arise at this stage, it is purely procedural as to which part of the proforma the price list has to be filed." In view of the foregoing, this appeal would have to be allowed and it is hereby ordered that the order of the lower authorities calling upon the appellants to file price list in part-II for every contract is set aside and it is open to the appellants to file price list in part-VI or such other appropriate form which the A.C.C.E., after discussion with the appellants may allow them to file keeping the practical problems involved in the matter in view. 8. In the remaining three appeals, Shri Habbu, learned Advocate for the appellants argued that the appellants' main business consists of accepting and executing works contracts for erection of false ceilings, doors, windows, partiti....
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....the factory they were neither manufactured nor were they "goods". In support of his submission, Sh. Habbu relied on the following decisions: (1) order dated 1-4-1981 in appellants' own appeal passed by Tamil Nadu Sales Tax Appellate Tribunal, Madras. (In this order the appellants activities were held to be works contract not liable to sales tax as sale). (2) South Bihar Sugar Mills v. Union of India, 1978 E.L.T. J 336. (3) Vanguard Rolling Shutters and Steel Works v. Commissioner of Sales Tax, 39 S.T.C. page 372. (4) Maharashtra Agro-Industrial Corporation v. C.C.E., Bombay - 1984 E.C.R. 1518 = 1984 (18) E.L.T. 14. (5) C.C.E., Jaipur v. Fine Marbles & Minerals Pvt. Ltd. 1984 ECR 1493 (CEGAT) (6) Dunlop India v. Union of India, AIR 1977 S.C. 597 = 1983 E.L.T. 1566 (S.C.). 9. It was noticed that while Sh. Habbu, learned Advocate in his arguments was emphasising only about windows and doors the entire range of appellants' activities or the products which are the subject-matter of present appeals were not very clear. Sh. Habbu was asked to state about the precise nature of the appellants activities and the processes in which the appellants were engaged in making windows, doors,....
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....and every article or piece which is the subject-matter of the present appeal and the appeal has to be decided generally. 11. On behalf of the respondent Shri V. Lakshmi Kumaran, S.D.R. strongly defended the orders passed by the lower authorities. As to the nature of the appellants' products Shri Lakshmi Kumaran read out to the Tribunal the order of the Collector of Central Excise, Madras in appeal No. 785/1984-B (we have already said that with the agreement of parties the records in this case so far as material have to be read as evidence in the present appeal). He submitted that as result of the processes performed by them (the appellants) on the Aluminum Sections definite identifiable articles or products come into existence. These products are complete frames, windows, doors and the like or parts or members of such windows, doors and the like. He submitted that in ISI 1948-61 specification of aluminum doors, windows and ventilators and their parts have been given. According to him this would mean that not only these door frames, windows frames and ventilators frames and the like are goods for the purpose of central excise duty but even their members are also goods. He su....
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....ise for consideration in the present appeals. This argument and observations are mentioned only to make the record straight. For this very reason Sh Habbu's reliance on decision of Tamil Nadu Sales Tax Tribunal wherein appellants activity was held to constitute works contract and not as sale does not help the appellants. 12. As to Sh. Habbu's argument about the appellants' products cleared from the factory not being in marketable condition, Sh. Lakshmi Kumaran had two fold arguments to make : Firstly, he urged there was evidence that appellants themselves in some cases had sold such members or pieces to certain parties and appellants had given out advertisement in Newspapers inviting parties to manufacture such pieces and that appellants in future propose to purchase them. He submitted that for being 'goods' general marketability was not the test and relied on Allahabad High Court decision in Union Carbide v. C.C.E., Madras, 1978 E.L.T. 1. Shri Lakshmi Kumaran also relied on the following decisions in support of his submissions.- (1) M/s. T.I. Cycles v. Union of India - 1983 E.L.T. 681; (2) Order No. 220/83-B, dated 31-3-1983, Collector of Customs v. B.H.E....
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....ication of the materials is not done just as a matter of course but it is doubly ensured that the factory does not go ahead with fabrication based on the works order details, wherever there was the slightest doubt regarding the dimensions. It is also seen from the terms of the contract that the customer has no option to reject the goods once they were made as per the dimensions mentioned in the supply order on the ground that the site conditions had varied subsequent to the placement of the order :- Sl. No. Works Order No. Special Instructions 1. Work Order No. 1063A Do not fabricate as final measurements are to be decided. Fabrication to be started after getting correct sizes. 2. Works Order 1932A/9/6, dated 16-9-1980 Fabrication to be started after getting correct sizes. 3. W.O. 1094/2/14 dated 28-2-1982 Except for items 3 and 7 sizes of other items should be measured at the site before fabrication. 4. W.O. 1109/10/3, dated 26-10-1978 Erector who goes there should take the exact dimensions and send us in advance. 5. Bangalore 1/5/79 dated 26-10-1978 Mr. Muthiah telephones that the width of the door should be taken as 4.625 met....
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....es 4. Cleast. 17. The Central issues for decision by the Bench in these appeals may be summarised as follows : (i) Classification and assessment of fully assembled windows, doors, shutters and other like products removed from the factory in fully assembled condition ; (ii) Classification and assessment of such products, if cleared from the factory in CKD or in ready-to-assemble condition for subsequent assembly at site ; (iii) Classification and assessment of pieces which have been subjected to processing like drilling, punching, revetting, etc. which the appellants claim to be aluminum sections and the department claims to be identifiable or component parts of windows, doors and the like whether they should be held to be aluminum sections only not liable to duty again under T.I. 68 or held assessable as component parts under T.I. 68. 18. The Bench feels that in respect of Central issues (i) and (ii) (i.e. completely assembled window frames, door frames and like items and ready to assemble items) the aluminum sections after being subjected to several processes result in bringing into existence complete door frame or window frame o....
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.... name in the market. We find that the discussion is very general and docs not disclose the evidence on which these findings are based. Another learned Collector of Central Excise (A) by his order-in-appeal No. E-1203, dated 18-6-1983 does not deal with these pieces at all and (teals only with frames and windows. He holds that the appellants' are preparing frames and supplying them. Another Appellate Collector of Central Excise, Bombay by his order dated 29-11-1977 (in para 3, of his order observes, "True, item is not available in the market as manufactured articles for sale/ purchase or trade but it is not necessary that an item should be so available in the market to attract excise duty". As already stated the Bench reiterates that merely cutting aluminum sections to different sizes, punching, drilling and revetting would not be constitute manufacture. The lower authorities should with respect to these pieces have given a clear cut finding based on evidence with respect to each class of pieces, whether there is 'manufacture' and or whether they are 'goods'. The basis for the findings should also have been clearly stated to justify levy of excise duty thereon. In absence of this, w....