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TMI Blog2015 (6) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor Undertaking engaged in providing telecommunication services. During the period from 01.04.2000 to 31.10.2005, they purchased switching equipments and other essential parts of the system such as power plant required for producing 48V DC power, inverters,etc, and assembled and installed the same at various places to set up telephone exchanges. The Department was of the view that this activity of the appellant would amount to manufacture and accordingly, the appellant would be required to pay duty on the telephone exchanges which have come into existence. According to the Department, by this activity of the appellant telephone exchanges classifiable under heading 8517 have come existence. It is on this basis that four show cause notices, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sh. Sameer Agarwal, Advocate, the Ld. Counsel for the appellant pleaded that the appellant purchased switching equipments, power supply, inverter etc., from various suppliers, that the heart of the telephone exchange is switching system, that by installing the switching system along with power plant and inverter does not bring into existence any new commodity with distinct name, character or uses, that the goods purchased by the appellant were "electrical apparatus for line telephony/line telegraphy" and the same remained as such after installation, that in any case, what has come into existence after installation is the machinery fixed to the earth and hence, the same cannot be treated as excisable, that in terms of Wikipedia, in the fie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the duty demand is for the period 01.04.2000 to 31.03.2001, BSNL has come into existence w.e.f. 01.10.2000 and the duty prior to the period 01.10.2000 cannot be demanded, that the switching equipment is manufactured as per the specifications of the BSNL and can be installed only in the area for which the same has been designed, that in view of this, the switching equipment which has been installed cannot be treated as marketable, that part of the duty demand is in respect of the cases where the existing telephone exchanges had been upgraded by replacing the switching system, that mere up-gradation of a machine cannot be treated as manufacture and in this regard he relied upon the judgment of the Tribunal in the case of CCE Delhi-II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Jt. CDR, pleaded that the issue involved in this case stands decided against them in their own case by the judgment of the Tribunal reported in 2013 (292) ELT 353 Tri. Kolkata wherein the Tribunal held that assembly of various parts of digital local telephone exchange equipment (DLTEE) procured from different sources would amount to manufacture. He also relied upon the board's circular no. 154/26/99-Cx-IV dated 15.01.2002 according to which for goods manufactured at the site to be dutiable, they should have a new identity character and use, distinct from inputs/ components that have gone into their production and further, such resultant goods should be specified in the central excise tariff as excisable goods besides being marketable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site can be shifted to another place and that the extended period has been correctly invoked in proviso to section 11A(1) as the appellant has not disclosed their activity to the Department, and that in view of the above submissions, there is no infirmity in the impugned order. 5. Sh. Sameer Agarwal, the Ld. Counsel for the appellant, in rejoinder, pleaded that the judgment of the Calcutta Bench in the appellant own case reported in 2013 (292) ELT 353 (Tri. Kol) has been set aside by the Hon'ble Calcutta High Court vide its judgment dated 12.03,2014 in respect of the appeal No. 15/2013 filed by the appellant against the Tribunal judgment. He, therefore, pleaded that the judgment of Calcutta bench is of no persuasive value. 6. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased switching systems. The point of dispute is as to whether assembly, installation and commissioning of switching system along with power plant, inverter etc. would amount to manufacture. In our view the main component of a telephone exchange is switching system which is an electrical apparatus for line telephony. The power plant and inverter are only auxiliary equipments. Power plant supplies the 48V DC current for functioning the switching system and inverter is required for standby period in case of power break down. Thus, the goods which have been purchased - Switching systems have remained the switching systems only even after installation and in our view no new commodity with distinct commercial identity or character or use has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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