TaxTMI 
TaxTMI 
2005 (11) TMI 103
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....nation of the facts involved. It, therefore, becomes 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. & Or....
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.... of the Tribunal in Aruna Industries, Vishakhapatnam & Others v. Collector of Central Excise reported in 1986 (25) E.L.T. 316 (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 t....
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....: (a) making of structures and parts of structures of the types illustrated in the parenthesis of Heading 73.08 of iron or steel, (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 thre....
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....to goods shall be taken to include a reference to those goods incomplete or unfinished, provided that, incomplete or unfinished goods have the essential character of complete or finished goods. It shall 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 "manu....
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....iled clarificatory or interpretative notes or rules. It was observed that there may be goods manufactured but not placed in the market as they were consumed captively in the manufacture of excisable goods. 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 Exci....
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.... was made on the ground that the appellant had suppressed that they manufactured steel structures and used them for erection of steel sheds as per Annexure A to the show cause notice dated 30-1-91 issued to the 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 an....
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....ting beams, columns, stair case with handrails, doors etc. In clause 7 of the contract, the scope of work was stipulated which included pre-assembly of structures and dismantling the same before stacking and it was 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....
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....into structures, will amount to manufacture, but if the structures emerge as an immovable property then no duty would be payable, since the test of marketability is not satisfied. It was submitted that even if the structures were 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 a....
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....was included, namely, 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. This contention was supported by the following decisions :- (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....
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....ility was required to be satisfied. He relied on the following decisions in support of this contention :- (a) Moti Laminates Pvt Ltd. v. CCE - 1995 (76) E.L.T. 241 (S.C.) (b) Union Carbide India Ltd. v. UOI - 1986 (24) E.L.T. 169 (S.C.) (c) Bhor Industries Ltd. v. CCE - 1989 (40) E.L.T. 280 (S.C.) (d) CCE v. Ambalal Sarabhai - 1989 (43) E.L.T. 214 (S.C.) (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. ....
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.... even one consumer can provide marketability for the goods. It was submitted that when such structurals are required to be used for erecting the structure for which they are prepared, the person ordering the raising of such structure provides adequate market for such goods. It was submitted that the items specified in various show cause notices and the agreements for erecting the structures show that these various 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 cus....
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....to say that manufacture has taken place for the purpose of central excise. The degrees of transformation and skill spent are irrelevant. Therefore, the question whether a particular process is a process of manufacture or not, has to be determined having regard to the facts and circumstances of each case and having regard to the well-known test laid down by the Supreme Court in various decisions (paragraphs 31, 33 and 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 purch....
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....and, therefore, cold rolled strips were used only as a raw material for the manufacture of tensile steel strippings known as "box strappings". (h) The decision of this Tribunal in Ajit India Pvt. Ltd., Madras v. Collector of Central Excise, Bombay/Madras reported in 1985 (19) E.L.T. 541 (Tribunal) was cited for the proposition that the aluminium sections subjected to several processes resulted in bringing into existence complete door frames or window frames 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 ....
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....r sub-heading 2404.49/2404.40. (m) The decision of the Delhi High Court in Taylor Instrument Co. Ltd. v. Commissioner of Income-tax reported in 1998 (232) ITR 771 (Del.) and the decision of the Bombay High Court in Consolidated Pneumatic Tool Co. (India) Ltd. v. Commissioner of Income-tax reported in 1994 (209) ITR 277 (Bom.) were cited for the proposition that the binding authority of a High Court does not extend beyond its territorial jurisdiction. (n) The decision of the Allahabad High 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 whet....
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....harged on mere "prepared" angles, rods or tubes, etc. which are not used in erecting the structures. The fabricated goods have already been used in erecting the designed structures in all cases, as stated before us on behalf of both the sides. 9.1 Lengthy arguments were advanced on the footing as if excise duty was being charged on mere angles, rods, sections, tubes etc. which were the raw material, simply because there was process of cutting or drilling involved which by itself may not amount to manufacture. On scrutiny of the show 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 st....
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....lings and fencing; level-crossing gates, and similar barriers; frameworks for greenhouses and forcing frames, large-scale shelving for assembly and permanent installation in shops, workshop, storehouses, etc., stalls and racks, certain protective barriers for motorways, made for sheet metal or from angles, shapes or sections. The heading also covers parts such as flat-rolled products, "wide flats" including so-called universal plates, strip, rods, angles shapes, sections and tubes, which have been prepared (e.g., drilled, bent or notched) for use in structures. 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 wh....
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....tructure that is to be raised. For example, roof frame may be fabricated for the roof structure of a shed. Such fabrication of frames may be done at the construction site or at some factory premises. The iron and steel frames fabricated at the factory premises away from the site of construction would be brought to the site for their use in erecting the structure. The frames pre-fabricated and brought at the site and frames fabricated the site of erection both are goods manufactured. There will be variety of parts of structures of iron and steel, that can be fabricated either at the 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 an....
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....e moveable object until made immovable by permanently fixing them in the designed immovable structure. To say that no parts of the structures came into existence as distinct commodities because ultimately they got permanently fixed into an immovable structure will run counter to the legislative intent to impose excise duty on such excisable goods at a stage when they have a separate identity as marketable goods anterior to their being permanently fixed in the immovable structure. 10.1 It has been said in Aruna Industries (supra) by the Hon'ble Member (Technical) in the oft coated 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,....
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.... the engineering world is more than obvious and the error has unfortunately percolated in several subsequent decisions that have followed Aruna Industries (supra). For the foregoing reasons, we cannot and, therefore, do not subscribe to that view and hold that trusses, purlins, and similar parts of structures are commercial articles having distinct character and identity than the raw material used for fabricating them, in the field of structural engineering. As noted above, purlins are articles distinct from raw angles, and C and Z types of purlins are well known in the field of structural 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 i....
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....the Hon'ble Gujarat High Court has held that the provisions of the Factories Act would not apply. To a similar effect is the decisions of 1962 (1) LLJ SC 427 (supra), the decision of the Madras High Court in LPA 22-24/74 (ESIC V.K. Ramachandran), it was held that construction workers who put up the additional constructions have no similar nexus with the factory as they are birds of passage and the moment they completed the construction they are out of the picture. In the present cases, the workers were merely birds of passage and cannot be considered as workers working within the factory". 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....
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....he preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on or; (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on - but does not include a mine subject to the operation of [the Mines Act, 1952 (35 of 1952)] (355 of 111952), or a mobile unit belonging to the armed forces of the Union, railways running shed or a hotel, restaurant or eating place. [Explanation I - For computing the number of workers for the purposes of this clause 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....
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....sioner of Central Excise, Nagpur v. Wainganga Sahakari S. Karkhana Ltd. (supra). The order made by the Supreme Court in Wainganga is reproduced hereunder : "Order : - The Tribunal was concerned with whether making trusses, columns, and purlins amounted to manufacture. The Tribunal followed an earlier decision in Aruna Industries, Vishakhapatnam v. CCE, Guntur [1986 (25) E.L.T. 580], it did not follow another decision in the case of Structurals and Machineries (Bokaro) Private Ltd. v. Collector of Central Excise [1984 (17) E.L.T. 127]. It is submitted on behalf of the Revenue that there are conflicting views taken by the Tribunal and that such conflicting views have been taken even after the impugned order. In one of these subsequent judgments, 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 not....
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....nthesis are not mentioned in the aforesaid sub-headings and they would, therefore, fall in the residuary sub-headings 7308.90 - "Other", and, these too would be considered to be illustrative and not exhaustive so far as the said residuary sub-heading is concerned. The latter part of the Heading 73.08 refers to plates, rods, angles, shapes, tubes and the like, prepared for use in structures of iron or steel in respect of articles other than those mentioned in the parenthesis and which are prepared from these members for use in structures of iron or steel. The question whether they would be included in the residuary sub-heading "Other" in sub-heading 7308.90 would obviously depend upon the fact whether they are prepared for use in structures and 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 permane....
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....be subjected to duty as they were not goods either because they were not produced or manufactured by it or if they had been produced or manufactured they were not marketed or capable or being marketed, as laid down in Moti Laminates P. Ltd., by the Hon'ble the Supreme Court. It is a settled law that, for the product to be marketable there need not be actual purchase or sale. So long as a new and distinct commodity known in the market has come into existence, there is manufacture. In A.P. State Electricity Board [1994 (70) E.L.T. 3 (S.C.)], the Supreme Court in paragraph 10 of the judgment after considering the earlier decisions of the Court, held that the "marketability" is essentially a question of fact to be decided in the facts of each case 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 t....
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....ry, others in all civilized countries, and still others that can be sold in all the inhabited parts of the world. Again, the marketability of a commodity is restricted quantitatively to the requirements for it that have still to be met and the quantitative limits of marketability are remarkably different for different goods. Commodities are also limited in their marketability with respect to the time periods in which they can be sold. Thus, there are goods for which requirements exist only in winter; others for which they exist only in summer; and in respect of perishable goods marketability gets restricted to a narrow time period. The marketability of commodities is restricted sometimes to greater and sometimes to smaller number of persons, and within 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, wh....