TaxTMI 
TaxTMI 
2017 (12) TMI 223
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....rders of specific size & end use, ground plates and C.I.plates of specific size & end use, joists of specific size & end use, platform of specific size and end use, from their factory premises and were clearing the same by showing the description as Fully Electronics Weighbridge or steel structure or load cells or Batteries or UPS or Digitizer etc. in their invoices during the period before June 2005 to February, 2006. The appellants were procuring the orders for complete weighbridge and clearing the same in unassembled/ disassembled condition. Therefore, the show cause notices were issued to the appellants to demand duty on electronic weighbridge cleared by the appellants in CKD and SKD condition. The matter was adjudicated and it was held that the appellants are liable to pay duty on complete weighbridge as the same has been cleared by the appellant in CKD and SKD condition, relying on the decision of the Hon'ble Apex Court, in the case of Narne Tulaman Manufcaturers Pvt.Ltd. Vs. CCE-1998 (38) ELT 566 (SC). Aggrieved from the said order, the appellant is before me. 3. Learned Counsel for the appellant submits that the appellants purchase sheets, girders, plates and joists from t....
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.... manufacture of weighbridge. 5. He further submits that the processing of steel items does not amount to manufacture. It is his submission that the Commissioner has relied upon the judgement of this Tribunal in the case of Mahindra & Mahindra Ltd. Vs. CCE-2005 (190) ELT 301 (Tri.-LB). He submits that the said decision of the larger bench is no more good law in the light of the decision of the Madhya Pradesh Power Transmission Co.Ltd. Vs. CCE, Bhopal in Excise Appeal No.2935/2005 wherein it has been held that cutting to size and drilling and punching of holes in channels and plates does not amount to manufacture after discussing the decision of the judgement of the larger bench in the case of Mahindra & Mahindra held that the same will not be applicable for the reasons that the decision of this Tribunal in the case of Aruna Industries-1986 (25) ELT 580 (T) was upheld by the Hon'ble Supreme Court in CCE Vs. Wainganga Sahakari S.Kharkhana-2002 (142) ELT 2 (SC) wherein it has been held that fabrication of trusses, columns and purlines does not amount to manufacture. He also relied on the decision of this Tribunal in the case of Elecon Engineering Co.Ltd. Vs. CCE-2005 (190) ELT 195 (T)....
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....rom the factory. The weighbridge came into existence only at site that too immovable form after putting all the parts step by step with construction activities thus it cannot be said that the weighbridge were complete or finished when they were removed from the factory. 10. He further submits that the penalty is not imposable on the appellant as the appellant has never suppressed the facts of clearance of disputed items payment of duty. In fact the appellant wrote a letter dated 15.02.2005 stating that as the appellant product are not non-excisable, therefore, it will not be paying any excise duty. To support this contention, he relied on the decision of the Tribunal in the case of Savira Industries Vs. CCE-2016 (331) ELT 504. 11. He further relied on the following decisions: (i) Ashbee Systems Pvt.Ltd. Vs. CCE, Delhi vide Final Order No.51908-51909/2017-DB dt. 21.2.2017 (ii) Ashbee Systems Pvt.Ltd.Vs. CCE, Chandigarh-II-2001 (134) ELT 717 (Tri.-Del.) (iii) CCE, Guntur Vs. Ashbee System Pvt.Ltd.-2004 (167) ELT 415 (Tri.Bang.) (iv) Mittal Engineering Works Ltd. Vs. CCE, Meerut-1996 (88) ELT 622 (SC) (v) Auto Measurematic Limited Vs. CCE, 1997 (96) ELT 14 (SC) (vi) CCE,....
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....(i) incidental or ancillary to the completion of a manufactured product; (ii) which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or (iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, and the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account. 6.2 Further, we find that the appellant received the duty paid products viz. angles, MS plates, channels etc. The process undertaken by them amounts only to cutting, punching of holes and galvanization and this process does not amount to manufacture, as this process does not transform the subject goods into a new and different pro....
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....d in 1996 (84) E.L.T. A48 (S.C.), Standard Industrial Engg. Co. v. CCE reported in 1988 (38) E.L.T. 196 and Pawar Construction Co. v. CCE, Chandigarh reported in 2002 (146) E.L.T. 367 (Tri.-Del.), wherein a consistent view has been taken that prior to 1-3-1988 being the date on which the Tariff Item 7308 was brought into effect, the process of converting bare angle into prepared angle will not amount to manufacture. The instant case relates to a period prior to 1-3-1988. Further, merely because specific entry was included viz. Heading 73.08 that ipso facto does not mean that the process amounts to manufacture. The Revenue has to further prove that the process undertaken amounts to manufacture and also that the resultant products are marketable. Therefore, keeping in view all the facts and circumstances, we are of the considered view that the process undertaken by the appellant, viz. punching, welding, trimming, drilling of holes, level cutting of edges and galvanizing do not amount to manufacture. 15. Therefore, we hold that the activity of cutting, drilling, punching and welding of channels and angles does not amount to manufacture. 16. We also find that this Tribunal in the cas....
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.... held that the end product, namely, the weighbridge, was a separate product which came into being as a result of the endeavour and activity of the appellant, and the appellant must be held to have manufactured it. The appellant's case that it was liable only for a component part and not the end product was, therefore, rejected. 8 Learned counsel for the "Revenue submitted that if". even a weighbridge was excisable, as held in the case of Narne Tulaman Manufacturers Pvt. Ltd., so was a mono vertical crystalliser. The only argument on behalf of Narne Tulaman Manufacturers Pvt. Ltd. was that it was liable to excise duty in respect of the indicating system that it manufactured and not the whole weighbridge. The contention that weighbridges were not `goods within the meaning of the Act was not raised and no evidence in that behalf was brought on record. We cannot assume that weighbridges stand on the same footing as mono vertical crystallisers in that regard and hold that because weighbridges were held to be exigible to excise duty so must mono vertical crystallisers. A decision cannot be relied upon in support of a proposition that it did not decide. 19. Further in the case of A....
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....e parts of the weighbridge, which are being cleared by them on payment of duty. The other parts of the weighbridge are either being procured by them from the other manufacturer or are being imported. All the parts of the weighbridge are being cleared by them under one invoice and / or otherwise and taken to site for assembling, erection of the same and commissioning of the same in terms of the orders placed upon them by different customers. 5. A dispute arose between the appellant and the Revenue as regards the excisability of weighbridge. The Revenue was of the view that inasmuch as all the parts and components of weigh bridge are being cleared by the appellant under the cover of one invoice, the same amounts to clearance of complete weigh bridge in SKD or CKD condition. As such the proceedings stand initiated against them for recovery of demand, culminating into passing in the present impugned order. 23. This Tribunal relied on the earlier decision reported in 2004 (176) ELT 415 (Tri.-Bang.) again this Tribunal has observed as under: 3. We have carefully considered the submissions made by both the sides. From the records, we find that the respondents M/s. Ashbee Systems Pr....
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.... existing form. It has to be treated as immovable property fully attached to the earth. It is therefore, not excisable. 24. Further, in the case of Ashbee Systems Pvt.Ltd- 2001 (134) ELT 717 (Tri-Del.) wherein this Tribunal has observed as under: 5. We have considered the submissions of both the sides, it is well settled law since the landmark decision of the Apex Court in the case of Union of India v. Delhi Cloth & General Mills - 1977 (1) E.L.T. (J 199) (S.C.) that to become goods an article must be something which can ordinarily come to the market to be "bought and sold". The Supreme Court again in the case of Moti Laminates Pvt. Ltd. v. CCE, 1995 (76) E.L.T. 241 (S.C.) held that the expression produced or manufactured mean that the goods so produced must satisfy the test of marketability. In Narne Tulaman's case the Apex Court considered only the aspect of manufacture and not the aspect of marketability. 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 ....