TMI Blog2017 (12) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... not amount to manufacture. The electronic weighbridge cannot be treated as goods which is capable of being brought to the market as bought and sold as such, therefore, the appellants are not liable to pay duty on weighbridges as whole - the appellants are paying duty on parts and activity of erection and commissioning at site of the buyer undertaken by the job worker therefore, we hold that the appellants are not manufacturing complete weighbridge. The issue has been decided in the case of M/s. Ashbee Systems Pvt. Limited Shri Ashish Bhutani, Director Versus Commissioner of Central Excise & S.T., Delhi [2017 (3) TMI 1131 - CESTAT NEW DELHI], where it was held that the appellants are paying duty on the parts cleared by them and are doing erection and commissioning at the site of the buyer. Therefore, appellants are not liable to pay duty on complete weigh bridge. Appeal allowed - decided in favor of appellant. - E/2618/2007 - A/62091/2017-EX[DB] - Dated:- 30-11-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) For the Appellant : Shri Amar Pratap Singh, Advocate For the Respondent : Shri G.M.Sharma, AR ORDER Per: A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e site itself. Where the job worker was undertaking these activities at their own premises, the appellants were sending the truck containing load cell and digitizer from their factory to the job workers and from the premises of the job workers, the steel items were loaded to the truck and the complete truck was sent to the site of the buyers. Thereafter the processing activity of erection and commissioning of weighbridge was undertaken by the job workers at site itself. As the appellant is manufacturing digitizer in their factory and these digitizers were cleared without payment of duty by availing SSI exemption and on payment of duty after exhausting the SSI exemption limit. The appellants imported load cells in their factory and these load cells are supplied as such to the buyers even without opening the packages and no activity on this load cells has been carried out by the appellants. The processed steel materials, digitizers and load cells were cleared at the site of the buyer wherein these materials were used for erecting immovable weighbridges. 4. It is his contention that the Commissioner in the impugned order has held that the processing of cutting, punching, welding, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been done by the job workers. Therefore, it cannot be held that the appellant is the manufacturer. To support this contention, he relied on the decision of the Tribunal in the case of Raunag International Ltd. Vs. CCE, Lucknow-2015 (325) ELT 380 (Tri.-Del.) and Diamond Cements Ltd. Vs. CCE, Bhopal-2012 (283) ELT 226 (Tri.-Del.). 7. He further submits that the value of the bought out items cannot be included in the assessable value as load cell supplied as such to the buyer even without opening the packages. He submits that the duty is payable on the manufactured goods where load cell is not manufactured by the appellants. Since the load cells were supplied in the same form in which the same were imported and no activity was undertaken on the load cell, no duty can be demanded on the value of load cell supplied to the buyers. 8. He further submits that the Commissioner has not appreciated the provisions of Rule 2 (a) of the Interpretative Rules. The said Rule is applicable on such goods which are cleared in CKD condition as the same cannot be removed as such due to difficulties in transportation etc and by assembling of the parts cleared in CKD condition movable excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that the weighbridge amounts to manufacture when both parts and final product separately and specifically dutiable. He also relied on the decision of the Hon ble Supreme Court in the case of Sirpur Paper Mills Ltd. Vs. CCE, Hyderabad-1998 (97) ELT 3 (SC) to say that paper making machine assembled and erected at site mainly form bought out components is a marketable commodity and is goods embedding it in a concrete base to ensure its wobble free operation does not make it immovable property in the sense a building or a tree. Machine is capable of being sold in parts after being dismantled from its base. Therefore, he prayed that the impugned order is to be upheld. 13. Heard the parties and considered the submissions. 14. We find that the facts of the case are not in dispute. Some parts are manufactured by the appellants, some parts are imported and some parts are taken to site for erection and commissioning of the same in terms of the order placed upon the appellants by different customers. Moreover, some activities namely, cutting, punching, welding drilling and bending are undertaken by the job worker on steel items. The case of the Revenue is that the processi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2008 (228) E.L.T. 40 (Tri.-Bang.) = 2009 (16) S.T.R. 533 (Tribunal), wherein the Tribunal, after considering the number of judgments as mentioned therein, has observed in Para 4 of the judgment as under : - 4. On a very careful consideration of the issue, we find that the respondents received duty paid MS angles, rods, channels, plates, etc. and the activity carried out by them amounts merely to drilling of holes and cutting them and these are sent to the various parties for manufacture of towers. In our view, the process undertaken by the respondents do not amount to manufacture as the MS rods, plates, angles, etc. remain the same even after the process have been carried out. Therefore, there is no new manufacturing process involved. In our view the impugned order of the Commissioner (Appeals) is legal and proper. There is no merit in the Revenue's appeals and the same are rejected. The learned counsel further submitted that the Revenue filed appeal against the decision of the Tribunal in the case of Deepak Galvanising Engg. Indus. P. Ltd. (supra ) before the Hon ble Andhra Pradesh High Court and the Hon ble High Court dismissed the appeal of the Revenue as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to manufacture. The same view been followed by this Tribunal in the case of Madhya Pradesh Power Transmission Co.Ltd. Vs. CCE, Bhopal vide order dated 14.10.2014. Therefore, the said activity does not amount to manufacture. Moreover the same has been undertaken by the job worker. As the appellant has not followed the procedure and Notification No.214/86-CE, if at all the activity amounts to manufacture the duty is to be paid by the job worker only and there is no proposal to demand duty from the job worker when it is admitted that the activity of cutting, drilling, punching and welding of channels and angles has been undertaken by the job workers only during the impugned period. 17. As we have observed that the said activity does not amount to manufacture, therefore, the question of payment of duty on the said activity does not arise on the basis of various judicial pronouncements as discussed hereinabove. 18. We further find that learned AR has relied on the decision of the Hon ble Supreme Court in the case of Narne Tulaman Manufacturers Pvt.Ltd. The said decision has been examined by Hon ble Apex Court in the case of Mittal Engineering Works Pvt.Ltd. (supra) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther observed as under: 3. The decision in the case of Narne Tulaman Manufacturers was considered by this Court in the case of Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, Meerut, 1996 (88) E.L.T. 622, and it was explained that the only argument on behalf of Narne Tulaman Manufacturers had been that it was liable to excise duty in respect of the indicating system that it manufactured and not the whole weighbridge. The contention that weighbridges were not goods within the meaning of the statute was not raised and no evidence in that behalf was brought on record. The Narne Tulaman Manufactures judgment did not lay down that weighbridges were excisable goods. 20. Further, we find that in Narne Tulaman Manufacturers Pvt.Ltd. (supra), the facts of the case are the appellants were assembling weighbridge at site wherein in the present case, the appellant bought three components fitted them into weighbridge so that it can work as on machine as such. But the same are not the facts in this case. In fact, the appellant is manufacturing digitizer and clearing the same on payment of duty and other bought items gone directly at site and thereafter the job wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved was conversion of the mechanical weigh bridge into electronic weigh bridge and the weigh bridge was embedded to the earth. The Respondents have carried out the work of dismantling of mechanical weigh bridge modifying deck and foundation fitting of load cells, re-erection of weigh bridge, calibration and fabrication. The work undertaken by them includes the following : (a) Existing concrete foundation was partly broken, plates of iron and steel were placed vertically and the foundation was strengthened with the help of reinforcement bars. (b) On such concrete foundation, pillars were built in which the load cells bases were embedded. (c) On the load cell bases coming out from the pillars, iron and steel platform was placed and the assembling was undertaken. (d) The junction box was fixed below the platform and the load cells were connected through a cable and such cable then fitted with the Digital Weight Indicator kept separately in a room which indicates the weight of the item to be weighed. We find that in case of Sirpur Paper Mills Ltd., reported in 1998 (97) E.L.T. 3 (S.C.), it was held that the purpose behind attaching the paper machine to a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur v. Man Structurals Ltd. - 2001 (130) E.L.T. 401 (S.C) = 2001 (44) RLT 113 (S.C.) has held that it is to be determined whether the structurals that the Department sought to make exigible to excise duty were new, identifiable goods which were produced as a result of manufacture or process and which are marketable . Thus the test of marketability or capability of being marketed is to be applied before any goods can be held to be exigible to excise duty. 25. Further, in the case of Triveni Engineering Industries Limited-2000 (120) ELT 273 (SC), this Tribunal has observed as under: 21. It will be useful to refer to the Explanatory Note issued by the Harmonized System of Nomenclature (HSN) to which Mr. Sridharan invited out attention. We also note that HSN received the approval of this Court in CCE v. Woodcraft [1995 (77) E.L.T. 23 (S.C.) = 1995 (3) SCC 454], which explained the scope of Heading 85.02 as under : ........Generating sets consisting of the generator and its prime mover which are mounted (or designed to be mounted) together as one unit or on a common base (see the General Explanatory Note to Section XVI), are classified here provided they are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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