TaxTMI 
TaxTMI 
2005 (11) TMI 103
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....s necessary to set aside all these orders of the Tribunal and remand the civil appeal to the Tribunal for being heard and decided afresh. They shall be decided afresh having due regard to what we have stated in our orders in civil appeal No. 5373 of 1999 and connected matters. All contentions may be raised before the Tribunal by either party including that the goods are not structurals. Liberty is given to both sides to produce additional evidence. The Civil Appeals are allowed. No order as to costs." 2. These appeals were, therefore, required to be decided afresh in the light of the decision of the Supreme Court in Civil Appeal No. 5373 of 1999 and cognated appeals [Collector of Central Excise, Jaipur v. Man Structurals reported in 2001 (130) E.L.T. 401 (S.C.)]. In Man Structrurals the Hon'ble the Supreme Court while allowing the appeals filed by the Revenue made the following order :- "[Order] - Delay condoned. 2. The learned Solicitor General appearing for the Department fairly states that the Department does not question the correctness of the judgments in Moti Laminates Pvt. Ltd. & Ors. v. Collector of Central Excise, 1995 (76) E.L.T. 241 (S.C.) = 1995 (3) SCC 23,....
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.... (Tri.), and held that, on legal issues raised as well as the items in question the matter was covered by the pronouncements of the Apex Court, High Court and the Tribunal settling the question of dutiability. It was held that no duty could be levied on immovable structures, factory building, power, plant etc. The Supreme Court, however, in view of its decision in Man Structurals (supra) set aside the said decision by observing that the Tribunal had failed to appreciate that there was a tariff entry (Tariff Heading 73.08) which made structurals exigible to excise duty and that they were so exigible provided that they were new identifiable goods that were the result of manufacture or processes and that they were marketable. It was observed that the Tribunal was required to determine the fact whether structurals that the department sought to make exigible to excise duty in various appeals including the present appeals, were new identifiable goods which were produced as a result of manufacture or processes, and which were marketable. In view of the Hon'ble the Supreme Court having set aside the decision of the Tribunal in the case of Elecon Engineering [1999 (107) E.L.T. 337 (Tri.....
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.... (b) making of plates, rods, angles, shapes, sections, tubes and the like, as articles prepared for use in structures of iron or steel, would amount to manufacture of excisable goods classifiable under Heading 73.08" These appeals are accordingly placed before us for our decision on the aforesaid question. 4. The Tariff Heading 73.08 came into force w.e.f. 1-3-88 and the said Heading which falls for our consideration is reproduced herein :- "73.08 Structures (excluding prefabricated buildings of Heading No. 94.06) and parts of structures (for example, bridges and bridge sections, lock-gates, towers, lattice masts, roofs, roofing, frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns) of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel. 7308.10 -Bridges and bridge-sections 7308.20 - Towers and lattice masts 7308.30 - Doors, windows and their frames and thresholds for doors 7308.40 - Props and similar equipment or scaffolding, shuttering or pit-propping 7308.90 - Other" The above Heading 7308.08 did not exist when the earlier decisi....
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....also to be taken to include a reference to those goods complete or finished (or falling to be classified as complete or finished by virtue of this rule) removed unassembled or disassembled. It was held that, in this case the raw material used for erection of a shed was angles, channels, sheets, beams, etc. which had been further worked to form articles which were known as purlins, trusses, beams, etc. called as structurals steel articles ultimately used in the erection of the sheds. The original iron/steel members were subjected to cutting, welding, drilling, fastening, etc. and the modifications of the said raw material was made specifically and exclusively to suite the plans and designs of the shed to be erected. The contention that the processes carried out did not amount to manufacture of new and distinct articles which are capable to sale to any consumer in the market and the original character of the said goods had not changed, was rejected considering the definitions of "manufacture" and "excisable goods" as well as the Rules of Interpretation of the Excise Tariff Schedule. It was held that the processes carried out were not incidental or ancillary to the completion of manuf....
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....s. It was held that the ratio of various decisions of the Tribunal cited was not applicable as they were pertaining to goods classifiable under the erstwhile Tariff Item 68 when there were no statutory rules of Interpretation of Central Excise Tariff. Even prior to the decision of Aruna Industries (supra) which was relied on before the Collector, in Structurals and Machineries (Bokara) Ltd. [1984 (17) E.L.T. 127] it was observed that, "if the nature of work is examined with reference to contract, the work orders and designs and drawings, there could be no doubt that the work was of highly intricate, specialized, or technical nature and after the processes were undertaken by the appellant, the raw material consisting of beams, angles, etc. got such shape and character that they could be readily fitted into structure". It was noted that these observations were in the content of similar and identical products, purlins, trusses, etc., and were in conformity with the present Central Excise Tariff Schedule. It was held that steel structural items before becoming part of immovable property had an essential character of complete and finished articles which were dutiable under heading 7308.....
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....e appellant. The structure in question relatable to sub-heading 7308.90 of the Tariff was cooling tower along with other articles such as lifting bail, charging stand, charging bucket, ladle hanger, etc. relatable to sub-heading 7326.90. 6.4 The appellants Appeal Nos. E/418-419/92 were called upon by show cause notice dated 26-4-90 to show cause why the excise duty amount of Rs. 4,68,502.90 should not be demanded from them on the ground that the appellants after manufacturing/fabrication had removed various types of steel structures for erection, installation, assembly, bolting and welding etc. for raising steel structures at various locations of site. In the show cause notice dated 29-10-90 issued to the appellant it was mentioned that columns, purlins, beams, rafters, glazing frames, crane girders, hoppers, bracings, gable runners, platform, hand-rails, gratings, walk-ways, stairs, gutter supports, ladders, railings etc. were tailor made in accordance with the drawings and specifications for making a structure of a specific need and were classifiable under sub-heading 7308.90. The demand of Central Excise duty to the tune of Rs. 15,99,844/- was made in the notice on that count. ....
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....indicated that it was advisable to assemble the structures on floor, prior to final welding. 6.7 In Appeal No. E/4371/92, demand was made for excise duty payable on fabrication of trusses, purlins, columns, angles, etc. The Manager (Administration), Shri B.S. Kalsi had state in his statement dated 15-10-2000 that they had fabricated steel structure in trusses, purlins, roofing frame work, columns, etc. in the premises of M/s. Mohan Fibre Products. According to him, the structural steel supplied "was first fabricated by doing certain processes like cutting to sizes and welding etc. and assembled according drawings supplied". Thereafter, the fabricated trusses, purlins, roofing frame work were erected at the specified place according to the drawings and the terms of the contract. The demand of excise duty of Rs. 2,07,669.42 was made on the ground that structures of steel and parts thereof had been fabricated and used for erection of stands without payment of excise duty. According to the Revenue, the fabrication of steel structures like trusses, columns etc. was undertaken at site and the same were erected by manual labour. 6.8 In Appeal No. E/143/93, the demand of excise duty of R....
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....re specifically mentioned in the Tariff Heading 7308 and the process amounted to manufacture, the product will not be dutiable because not duty is payable on structures which are immovable. Reliance was placed on Triveni Engineering Industries v. CCE reported 2000 (120) E.L.T. 273 (S.C.) in support of this contention. It was then argued that if the structures are movable and capable of being bought and sold as such, then they would be dutiable under heading 73.08. However, parts which form a part of immovable structure will not be considered as immovable and would be liable to duty. It was fairly submitted that the fact that the structure is immovable ipso facto would not mean that the parts are also immovable. The individual parts will be chargeable to duty if they satisfy the test of manufacture and marketability. It was submitted that this view was settled by the judgment of the Supreme Court in Triveni Engineering Industries wherein the turbo alternator and the steam turbine were held to be dutiable. As regards the dutiability of all parts like, angles, sections, plates, etc., it was submitted that for the period prior to 1-3-88, the question as to whether conversion of bare an....
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.... (i) Moti Laminates Pvt. Ltd. v. CCE - 1995 (76) E.L.T. 241 (S.C.) (ii) Hyderabad Industries Ltd. v. UOI - 1999 (108) E.L.T. 321 (S.C.) (iii) Shyam Oilcake Ltd. v. CCE - 2004 (174) E.L.T. 145 (S.C.) (iv) UOI v. Ahmedabad Electricity Co. Ltd. - 2003 (158) E.L.T. 3 (S.C.) (v) Aman Marble Industries P. Ltd. v. CCE - 2003 (157) E.L.T. 393 (S.C.) (vi) CCE v. Markfed Vanaspati & Allied Indus. - 2003 (153) E.L.T. 491 (S.C.) (vii) CCE v. SR Tissues Pvt. Ltd. - 2005 (186) E.L.T. 385 (S.C.) = 2005 (125) ECR 85 (S.C.) (viii) CCE v. Technoweld Industries - 2003 (155) E.L.T. 209 (S.C.) It was submitted that as per these decisions, merely because there was a specific entry in the tariff, it does not mean that duty was payable, and that, only if the process amounts to manufacture and the product was marketable, that the duty would be payable. It was further argued that Heading 73.08 would apply in a situation where there is an integrated plant in which bare angles etc. are manufactured from ingots or billets, and thereafter bare angles are converted into prepared angles for use as structures in which event, though the process of converting bare angle to prepared angle did not amoun....
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.... (e) Hindustan Ferodo Ltd. v. CCE - 1997 (89) E.L.T. 16 (S.C.) (f) Union of India v. Sonic Electrochem Pvt. Ltd. - 2002 (145) E.L.T. 274 (S.C.) It was further contended that the contracts of the appellants with their customers were for erection, fabrication of the entire structure which were raised as immovable properties. He argued that even if the customer who places an order for erection of the shed is offered such prepared angles for sale, he will not accept the same and thus the test of marketability was not satisfied in the present case. It was submitted that the mere fact that the goods were captively consumed will not mean that they are marketable and that the department was required to lead further evidence, independently to show that the goods were marketable. It was submitted that no evidence was forthcoming in the present cases as regards marketability and therefore, the duty demand was not sustainable. It was argued that Rule 2(a) of the Rules of Interpretation was not relevant for charging of duty because these rules were relevant for classification and not on the aspect of excisability. It was submitted that the process of cutting, drilling holes, welding,....
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....rious items came into existence by being manufactured in some cases near the site or elsewhere and thereafter they were used in erecting the structure. It was submitted that these articles like trusses, purlins, beams, columns, etc. were first fabricated and thereafter taken to the site for ultimate installation. It was argued that the duty was asked on structures as they existed prior to such installation and not on any immovable property. It was submitted by referring to technical literature, that trusses, purlins, etc., were recognized as difference commercial commodities, and that the manufacturers of these commodities offered them for sale which shows that they were marketable. It was also submitted the same sub-heading 73.08 was also included in the Customs Tariff and customs duty was payable in respect of imports of such structurals which fact by itself shows that they could be traded and customs duty would be payable thereon as goods when imported. It was also submitted that where the goods were captively consumed, it should be presumed that they are marketable unless proved otherwise. It was further submitted that the Customs Co-operation Council (now World Customs Organiz....
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....37). (b) The decision of the Supreme Court in Collector of Central Excise, Meerut v. Kapri International (P) Ltd. reported in 2002 (142) E.L.T. 10 (S.C.), was cited to point out that it was held that cutting of cotton fabrics from running length into small pieces and giving them a definite required shape which brings into existence new marketable commodity like bed spreads, table cloth and napkins etc., would be production of a new commodity which has a definite commercial identity in the market. (c) The decision of the Supreme Court in Brakes India Ltd. v. Superintendent of Central Excise reported in 1998 (101) E.L.T. 241, was cited to point out that the Supreme Court upheld the decision of the Madras High Court holding that brake lining blanks purchased by the appellant, when put to process of drilling, trimming and chamfering can be said to be manufactured within the meaning of Section 2(f) of the said Act. (d) The decision of the Supreme Court in Lal Woollen & Silk Mills (P) Ltd. v. Collector of Central Excise, Chandigarh reported in 1999 (108) E.L.T. 7 (S.C.), was cited to point out that the Supreme Court had observed that admittedly "dyed yarn" and "grey yarn" were cove....
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.... or other items and that the pieces are in CKD packs or ready-to-assemble condition and may be fitted at site only after some minor operation, such pieces would be called goods and such processes 'manufacture' and these goods would be classifiable under Tariff Item 68 and liable to duty. (i) The decision of three Member Bench of this Tribunal in Structurals and Machineries (Bokaro) Pvt. Ltd. v. Collector of Central Excise, Patna reported in 1984 (17) E.L.T. 127 (Tri.) was cited to point out that the Tribunal had in the context of Item 68 of the Central Excise Tariff held, in paragraphs 8 and 9 of the judgment that, finished goods known as purlins, trusses, etc. for erection of structures made out of raw steel as per intricate designs and specifications, must be held to be manufactured and the resulting product as goods and these cannot be called as isolated act of cutting or welding not changing the identity of the raw material. It was held that the analogy of pre-fabricated houses, where parts of pre-fabricated houses are so constructed as to be fabricated or fitted into a pre-fabricated house, can be applied to such products which are commonly known as structurals. (j....
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....Court in Agra Metal Perforators v. Commissioner, Sales Tax reported in 1981 (48) STC 378 (All.), was cited to point out that it was held that after perforation, the iron sheet emerges as a different commercial commodity and that a perforated iron sheet cannot be used for purposes for which plain iron sheet can be used. It was observed that a perforated iron sheet cannot be restored to its original shape and thus, it was a different commercial commodity. (o) The decision of the Supreme Court in State of Tamil Nadu v. Pyare Lal Malhotra reported in 1983 (13) E.L.T. 1582 (S.C.), was cited to point out that the Supreme Court in paragraph 13 held that, if the question is whether a new commercial commodity has come into existence or not, so that its sale is a new taxable event, in the sales tax law, it may also become necessary to consider whether a manufacturing process, which had altered the identity of the commercial commodity, has taken place. (p) The decision of the Supreme Court in Commissioner of Central Excise, Jaipur v. Hindustan Zinc Ltd. reported in 2004 (166) E.L.T. 145 (S.C.), was cited for the proposition that it is settled law that for a product to be marketed there ne....
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....ow cause notices and other record, it becomes clear that all these cases were on the question evasion of excise duty that became payable on the structures, parts of structures when they were fabricated and used thereafter for erecting the designed structure. It is only for the purpose of valuation of the parts of structures used in erecting the designed structure, that the quantities of raw material such as angles rods, tubes, plates, etc. used for the purpose and their value were considered for working out the duty evasion. The entire exercise of projecting the matter as if mere angles, rods, tubes or plates that went into the making of the designed structures, were being subjected to excise duty is misconceived and misleading. 9.2 Out of the parts of structures illustratively enumerated in the parenthesis of Heading 73.08, "bridges, and bridge sections" fall under sub-heading 7308.10, "doors and lattice masts" under sub-heading 7308.20, and props and similar equipment for scaffolding, shuttering or pit-propping under sub-heading 7308.40. The remaining enumerated item, i.e. lock-gates, roofs, roofing framework , balustrades, pillars and columns as well as all other like articles ....
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....ures. The heading further covers products consisting of separate rolled bars twisted together, which are also used for reinforced or pre-stressed concrete work." 9.4 The Schedule to the Excise Tariff Act contains rules for the interpretation of the Schedule. As per Rule 2(a) of the Rules of Interpretation even incomplete or unfinished goods having essential character of the complete or finished goods are included in relation to the goods referred in any tariff heading. This applies even to the parts of structures and articles prepared for use in structures of iron or steel. 9.5 The system of nomenclature which is universally adopted covers the same articles of Heading 73.08 even in the context of the Customs Tariff, which means that they are internationally considered as commodities which can be traded and, therefore, are goods. The International Convention on Harmonized System and Coding System was adopted to provide a uniform nomenclature developed by the World Customs Organization (WCO). It comprises about 5,000 commodity groups, each identified by a six digit code, arranged in a legal and logical structure and is supported by well-defined rules to achieve uniform classifica....
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....he site or at some factory premises away from the site. The iron and steel raw material, such as angles, plates, tubes, etc., are used in making parts of structures and they acquired a distinctly different shape to suit the structural designs. For example, if iron or steel angles and plates are cut to make a steel table or chair which can be dismantled, it cannot be said that there are no goods manufactured because the iron and steel angles or plates remain such angles and plates though of different sizes, and merely holes are punched and screws fitted. Unlike in liquid mixtures, the raw material of iron and steel or wood will retain their identity, but it is precisely their being cut, and designed, punched and fitted to make an article commercially known that involves manufacture of an article distinct from the angles, sheets, tubes etc. used in it. Mere drilling holes or mere cutting jobs in isolation may not by themselves involve manufacture of an article, but, converting raw material like angles, tubes, plates etc. to bring about a distinct commodity will surely amount to manufacture as it is not "mere" drilling holes or cutting, but the activity is aimed at bringing about a di....
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....oated passage that, "there are no such goods as trusses, columns, purlins.............A truss is only a frame. The steel members of a truss may be items of merchandise, but a truss never....................A truss does not form a recognizable article of commerce in the same way an angle or channel does because a truss is only a function which a steel member article performs when placed in a position obtained by the engineer". With respect, the erudite language projects the meaning of 'truss' as a verb and ignores it as a noun. While, as a verb the word "truss" would mean to tie-up or bind tightly, and, therefore, doing of such thing may not be a recognizable commercial article when used as a noun the word 'truss' denotes a rigid frame-work designed to support a structure. When one speaks of 'truss' in the context of Tariff Heading 73.08 as an excisable article, it necessarily means the frame-work called 'truss' in civil engineering, fabricated for use in a structure to support its roof. In architecture and structural engineering, a 'truss' is a structure consisting of straight slender member connected at joints. In order for a 'truss'....
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....ural engineering manufactured as marketable commodities. 11.2 One more aspect needing clarification in the context of the applicability of the ratio of Aruna Industries (supra) needs to be emphasized. One of the points for determination in that case, as reflected in paragraph 13 of the judgment was, "whether the place where 'manufacture' had taken place was a factory within the meaning of Section 2(m) of the Factories Act?". This was an issue relevant in the context of those appeals because, placing reliance on the notification 46/81-C.E., which exempted goods, falling under the residuary item 68, other than those manufactured in a "factory"; and the explanation to the notification, in terms, indicated that the word 'factory' had the meaning assigned to it in clause (m) of Section 2 of the Factories Act, 1948. The Revenue had contended that steel structurals which were fabricated at the work site allotted to the contractors and were shifted to the project site for the erection of the shed were goods, different from and having a distinct character and use as compared to the raw materials and attracted duty under the residuary Tariff Item 68. The contention raised on....
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.... In paragraph 23 of the judgment, it was held that, "Even assuming that the respondents are manufacturers since the goods are not manufactured in a factory under Section 2(m) of the Factories Act or cleared from a factory, the provisions of the Central Excise Rules could not apply". (Emphasis added). 11.3 The residuary Tariff Item 68 as it existed at the relevant time and the exemption notification No. 46/81-C.E., dated 1-3-1981 which granted exemption from the whole of the excise duty to the goods other than manufactured in "factory" as defined in Section 2(m) of the Factories Act which were relevant for the decision in Aruna Industries (supra) are reproduced below :- Tariff Item : 68 - All other goods, NES "All other goods, not elsewhere specified, manufactured in a factory but excluding - (a) alcohol all sorts including alcoholic liquors for human consumption; (b) Opium, Indian hemp and other narcotic drugs and narcotics; and (c) dutiable goods as defined in Section 2(c) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. Explanation - In this item, the expression "factory" has the meaning assigned to it in Section 2(c) of the Factories Act, 1948." ....
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....all the workers in [different groups and relays] in a day shall be taken into account] [Explanation II - For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof;]" 11.4 Thus, as per the Notification 46/81 dated 1-3-81 read with Tariff Item 68, the goods which were manufactured at the site of the construction i.e. otherwise than in a factory as defined in Section 2(m) were exempted from the whole of duty of excise leviable thereon which means that excise duty was payable only in respect of the goods manufactured in a "factory", as defined in clause 2(m) of Section 2 of the Factories Act, 1948. The said notification which was issued in the context of Item 68 of the First Schedule to the Central Excises and Salt Act, 1944, no longer operated in the context of the provision of Heading 73.08 of the Tariff Act, 1985. In other words, so far as the Tariff Heading 73.08 is concerned, the said notification of exemption to the goods manufactured otherwise than in a "factor....
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....ents, in the case of Richardson & Cruddas (1972) Ltd. v. Collector of Central Excise [1988 (38) E.L.T. 176], the case of Aruna Industries (supra) has been considered and found to be applicable to a situation where the assessee was erecting the structures at the construction site and fabricating materials on the spot; it was, therefore, found that this could not be considered to be fabrication in a factory. Now, in the instant case, the Tribunal noted that it had been found as a fact by the Collector that the assessee has undertaken fabrication work at site. This was a case, therefore, to which the decision of Aruna Industries (supra) applied and the Tribunal's order cannot be faulted." (Emphasis supplied) It will be noticed that Hon'ble the Supreme court held that the decision of Aruna Industries applied to the case before it because it was found as a fact by the Collector that the assessee had undertaken fabrication work at site and not in a factory. It is, therefore, obvious that the question whether fabrication work was done in an open site or in a "factory", as defined in Section 2(m) of the Factories Act having become irrelevant in the context of Heading 73.08, the ra....
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....have acquired independent identity in their movable state before being permanently fixed in the structure like the items mentioned in the parenthesis while illustrating parts of structures. We have hereinabove, while referring to the demand of duty made from the appellants, referred to the nature of the parts of structures which were first fabricated on the ground and thereafter were used in the designed structure which was erected by permanently fixing them in such structures. All these had acquired their identity before they were so permanently fixed and as observed above, they are well known in the market as separate commodities. Their state of being movables, being parts of structures fabricated for the purpose of being used in the erection of a structure, came to an end only after they were permanently fixed in the structure. The liability to pay duty, that had arisen at the time when they were manufactured as parts of structures had, however, crystalised, and it was possible to ascertain the same even after they got fixed by referring to the quantities of the raw material that went into making them for the purpose of ascertaining their value. Therefore, any enquiry into the r....
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....e and there can be no generalization. The fact that the goods are not in fact marketed is of no relevance. It is also not necessary that the goods in question should be generally available in the market. Even if the goods are available from one source or from a specified market, it makes no difference so long as they are available for purchasers. It was also held that even if there was only one purchaser of these articles, it must be held that there is a market for these articles. The marketability of these articles does not depend upon the number of purchasers nor is the market confined to the territorial limits of the country. The work of fabricating parts of structures such as trusses, etc., referred to hereinabove is a regular feature in the field of construction of sheds and other structures in which such parts of structures can be used. When such parts of structures are required to be used in the structure which is to be erected for which they are prepared, the person ordering the raising of such structure, in our opinion, provides an adequate market for such goods. 13.1 Commodity character in the concept of marketable commodity is transitory relationship between the goods a....
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....thin sometimes narrower and sometimes wider spatial, temporal, and quantitative limits. Several factors limiting the marketability of commodities will have a multiple weight wherever commodities are transferred from hand to hand, from place to place and from one time period to another. Commodities whose marketability is restricted to a small number of persons, whose area of sale is limited, which can be preserved only for a short time, which can be brought to market only in strictly limited quantities at anyone time, or whose price are subject to fluctuations, etc., may all retain some degree of marketability within certain limits, but they are not capable of circulating freely. Moreover, commodities that must be specially fitted to the need of the consumer to the usable at all, are not saleable in equal degree in the hands of every owner. Thus, the concept of marketability in the context of marketability of parts of steel structures of the above nature falling under Heading 73.08 cannot be viewed through a hawker's eye. Hawking in its traditional sense, where the hawker moves with the goods screaming for the attention of potential customers, cannot be applied to the marketabil....