TMI Blog1998 (5) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... ling frames classifiable under heading 84.45 of the CET. On receiving orders for these machineries the appellants supplied the same in knocked down condition for assembly at the site of their customers under supervision of their engineers. The supplies to their customers comprised of bare frames actually manufactured in the factory of the appellants and certain component parts purchased by the appellants were also supplied to the customers in addition to certain accessories which were also sent directly from the original manufacturers of the same to the customers. In respect of each of the above three categories of supplies, the appellants prepared separate invoices paying duty only on the bare frames manufactured in their factory. The officers of the department on their visit to the factory, studied the sales pattern of the appellants and the invoice relating to such sales. They found that the printed catalogues issued by the manufacturers to their customers described the fully assembled frames and not merely the bare frames. The officers were also of the opinion that the bare frames themselves are not complete goods, as the contracted price of the machineries between the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanshi Finance and Investments Pvt. Ltd., Secunderabad, a form has been made for supply of doubling frames complete in all respects. The prices quoted are based on price of raw material, labour costs and other components ruling on the date and was subject to enhancement if necessary by the assessee at the time of delivery. It also stated that the price is ex-works Coimbatore and that excise duty and other charges would be extra. The Collector held that the printed sales literature and also confirmation of the orders seek to show that the assessee are the manufacturers of the entire assembly, that they are willing to take the responsibility for the quality of all the parts and that they are quoting the price ex-duty. Therefore, he has observed that one would expect to pay duty on the entire frame calculated on the quotation of Rs. 596 per spindle when in actuality the duty paid by them was only at the rate of Rs. 436 per spindle. He has rejected the argument of double taxation. He has observed that the components such as 9" lift Aluminium spindles which were built separately were cleared from the factory of manufacture as excisable goods. The notice does not indicate whether duty wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -4-1994 [1998 (99) E.L.T. 481 (S.C.)]. This is the latest judgment which has a direct binding force in the present case. In this case, the Hon ble Supreme Court has looked into the earlier judgment in the case of PSI Data System v. CCE reported in 1997 (88) E.L.T. 3 (S.C.) and also the judgment rendered in the case of Mittal Engineering Works (P) Ltd. v. CCE, Meerut reported in 1996 (88) E.L.T. 622 (S.C.), and that of Quality Steel Tubes (P) Ltd. v. CCE, reported in 1995 (75) E.L.T. 17. He also submitted that the Hon ble Supreme Court has clearly laid down in the case of Mittal Engineering that the earlier judgment in the case of Narne Tulaman Manufacturers Pvt. Ltd. v. CCE reported in 1988 (38) E.L.T. 566 (S.C.) did not deal with the aspect relating to immovable property. He also relied upon the judgment in the case of Tata Robins Fraser Ltd. v. CCE reported in 1990 (46) E.L.T. 562 wherein the products coming by piece being immovable property were held to be not goods and were not liable to excise duty. He submitted that the appellants merely collected various component parts and installed at site along with the items manufactured by them in their factory and the items were taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed all the details to the department and hence intent to evade payment of duty by the assessee is very clear. He pointed out that the judgments cited by the learned Counsel are distinguishable. He submitted that Tribunal s order in 2710/97, dated 9-10-1997 has to be followed in this case. 7. On careful consideration of the submissions made by both the sides, we notice that in the earlier order passed by the Tribunal in the case of the very same appellants in Revenue appeal, the Tribunal has observed as under in their Order No. 2710/97, dated 9-10-1997. 3. The learned JDR for the department, Shri Murugandi, stated that the appellant contracted for the supply of the machine and the whole machine came into existence at the customer s premises and the respondents made the assembly of the machine. Therefore, the whole machine has come into existence at the premises of the customer and the respondent manufactured the same and is liable to pay the duty for the whole machine. 4. The learned Consultant, Shri Kandaswamy, stated that only the frame-work was manufactured by the respondents. The bought-out items were purchased from the market and they were directly taken to the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, we are of the view that the impugned order is not legal and proper and the order passed by the Assistant Collector, hol- ding that the appellant is liable to pay the duty on the full machine, is correct. 9. Accordingly, we set aside the impugned order and allow the appeal with consequential relief." 8. As can be seen from the above order passed by the Tribunal, the latest judgments of the Hon ble Supreme Court in the case of Mittal Engineering (supra) and Quality Steel Tubes (P) Ltd. v. CCE (supra) have not been gone into by the Tribunal while deciding the case. The question pertaining to dutiability of the goods at the stage of manufacture and removal has not been examined. Likewise the aspect pertaining to erection and coming into existence of the immovable property has not been examined. In the judgment of the Supreme Court, the same question had been gone into and the Hon ble Supreme Court has clearly held that what comes into existence at site is immovable property and what is traded by the assessee is in the form of component parts and its value addition does not arise. They have also held that the erection charges are not to be added as in the case of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no finding on this aspect on which identical plea was raised that the goods leaving from the factory constitute independent goods as it had separate classification and it requires to be assessed likewise. The department had assessed the spindle frame as an independent item. The appellants were taking the bought out items for fitment at the site and these items were not manufactured by them. Therefore, the spindle frames by themselves came into existence as independent item when it left the factory, and the components parts together with accessories and the spindle frames were erected at site separately. The appellants separately invoiced the bought out items for fitment at site adding the value thereof in the invoice as they were paying duty on the spindle frames. Therefore, it follows that what is removed from the factory is spindle frame and what is constituted for erection at site is in terms of the invoice. We notice that the earlier judgment cited does not deal with these aspects of the matter and it is silent even on the ratio of the other judgments cited before the Bench. Therefore, the matter is required to be appreciated in terms of the law laid down by the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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