TaxTMI 
TaxTMI 
2018 (1) TMI 108
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....tch, Bulb holders, CFL bulbs, MCB, Nuts, Bolts, Screws & GI wire, PVC/GI pipes, etc. Taking into account the different type of combinations and the nature of items cleared during the relevant period, the following categorization of these supplies have been made for convenience and reference. These categorizations were taken note of in the impugned order and various invoices and documents evidencing such categorization have also been considered. These categories are: Category-I: Each item is sold in original bulk packing, as purchased by the appellant. None of the items are fixed or mounted on the Board. In this category, all the items are individually shown and billed. Category-II: Each item is sold in original bulk packing, as purchased by the appellant. The items are not fixed or mounted on the Board. A lump-sum price is charged in this case. Category-III: Under the category, the board, earthing bolts/nuts, piano switch and batten holders are repacked in a box to make a set while items like conduit pipe, aluminum wire, PVC saddle and other hardware items are supplied in original bulk packing. In this category of goods also, no items are fixed or mounted on the board and ....
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....ompared to items used in making such goods. In other words, there is no item as "BPL Kit" known or available in the market for sale and purchase. The product is not commercially known. iii) Without prejudice to the above submissions, it is stated that the product, even after mounting of two items, is not classifiable under CETH 85371000. The item mentioned in the said tariff heading is for electric control or the distribution of electricity. The present Kit supplied by the appellant neither controls nor distributes electricity. Reliance was placed on the clarification issued by M/s Rural Electrification Corporation Ltd. iv) The re-categorization of items cleared, quantification of duty demand is also contested. The benefit of cum-duty-valuation and and Cenvat credit duty on duty paid inputs are also available to the appellant- assessee. v) There is no case for invoking the extended period and imposition of penalty on such issue involved is one of interpretation of the statutory provisions including tariff entries. 5. Contesting the appeal filed by the Revenue, the ld Counsel for the appellant-assessee submitted that the whole point raised in the appeal....
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.... submitted that the original authority should not have accepted the categorization made by the appellant-assessee which is misleading and does not reflect the true picture. The appellant-assessee were engaged in the manufacture of BPL Kit as per specified drawing/design of BPL Kits provided by the customers. The invoices issued by the appellant-assessee also indicate the rate per kit. Referring to the provisions of Section 2(f), ld AR submitted that the process undertaken by the appellant-assessee brings-out a new article, namely, BPL Kit, having distinct name, character or use and is different from the components procured from different manufacturers or traders and are making BPL Kits and supplying the same to their customers. As such, the goods cleared are liable to pay central excise duty under heading 8537. The ld AR also contested the findings recorded by the original authority with reference to demand of extended period and also penalties. 8. We heard both the sides and perused appeal record. We take up the appeal by the Revenue first. The Revenue is pleading for the confirmation of full duty demand on all types of goods cleared by the appellant-assessee by classifying the....
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....any goods in the Section or Chapter notes of 16 [the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to 17 (manufacture; or] ^18(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 "manufacture" 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;]" 11. As noted above, the term is not explained by exhaustive definition. However, the scope of the term has been a subject matter of various decisions by the Apex Court. In Delhi Cloth & General Mills Company Ltd, 1977(1) ELT (J199) (SC), the Apex Court examined the scope of the term "manufacture". It was held that the term 'process' cannot be equipped to "manufacture". The word 'manufacture' used as a verb is ge....
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.... is as below: "8537- Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of a heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of Chapter 90, and numerical control apparatus other than switching apparatus of heading 8517 85371000- For a voltage not exceeding 1,000 V" 15. We note that except in two categories of clearances, there is no evidence to show that the appellant-assessee is even putting together an assembly of various electrical components and accessories in order to make any new identifiable product. Here, it is necessary to find that even if the goods were cleared and identified as BPL Kit, whether such goods can at all be considered as a new excisable item. Here, the main thrust of the Revenue is that there is an assembly process undertaken by the appellant-assessee. We note that mere putting together of two or more items by itself will not make an assembly of a new item. In M/s Narang Latex and Dispersions (P) Ltd, 2001 (134) ELT 482 (Tri- Mby.), the Tribual held that when the appellant cleared the nipples manufactured by t....