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2005 (9) TMI 82 - SUPREME COURTWhether on the facts and circumstances of the case, the Commissioner was right in holding that the fragmented activities of M/s. Aldec Corporation, M/s. Vitthaleshwara Painting Industries (VPI) and M/s. Srinivasa Rolling and Engineering Works (SREW) taken individually or jointly resulted in "manufacture" of a separate, independent and distinct identifiable product namely, Painted Aluminium Slat (PAS) for Venetian blinds classifiable under chapter sub-heading 7616.90? Held that:- Note 2 to Section XV, under which Chapter 76 falls, has not been considered. Similarly, Section 2(b) of Section XVI of the HSN has not been considered. Further, the functional utility of PAS as deflector of air-flow has not been considered. The issue as to whether the PAS in question was for general purpose or was user specific was not considered. In the present case, the Commissioner has not discussed the difference between the old tariff items 27(6) and 68 vis-a-vis Chapter Heading 76.06 and sub-heading 7616.90 of the Tariff Act, 1985. Even on marketability, there is no evidence as to the type of PAS (with particulars of dimension) being sold in the market. In the circumstances, we do not wish to interfere in the matter. Ordinarily, we would have remitted the matter to the Commissioner. However, in this case, we find that the department has accepted the decisions of the Commissioner (Appeals) and Additional Collector passed in 1986 and 1987 holding that each of the above process do not constitute "manufacture". The respondent herein has acted on that basis for at least ten years. Hence, we do not find any intention to evade duty on the part of the respondent. We cannot expect the respondent to collect duty from its customers for the last ten years. The question of ownership was directly relatable to the clearances made in the names of M/s. VPI and M/s. SREW and, therefore, the Tribunal ought to have adjudicated upon the question as to whether the clearances were made in the name of dummy firms. Appeal dismissed.
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