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2015 (10) TMI 1724 - CESTAT MUMBAI

2015 (10) TMI 1724 - CESTAT MUMBAI - 2016 (333) E.L.T. 443 (Tri. - Mumbai) - Denial of refund claim - Duty was paid whereas the activity was not amount to Manufacture - period of limitation - processing operations like punching, welding, trimming, drilling of holes, level cutting of edges and galvanizing in relation to erection of transmission tower - Held that:- appellant s case is squarely covered by the decision of the Tribunal in the case of CCE, Hyderabad vs. Deepak Galvanising & Engg. Indu .....

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e process undertaken by the appellant, viz. punching, welding, trimming, drilling of holes, level cutting of edges and galvanizing do not amount to manufacture. - activity carried out by the petitioner is not a manufacturing activity and the petitioner is entitled to refund of the duty paid during 1st March 1986 to 31st December 1986, then the refund claim of the petitioner shall be disposed of as per the provisions of Section 11B of the Central Excise Act. The adjudicating authority did not dec .....

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2015-WZB/EB - Dated:- 9-10-2015 - Hon ble Mr. P.K. Jain, Member (Technical) And Hon ble Mr. S.S. Garg, Member (Judicial) For the Appellant : Shri Mayur Shroff, Advocate For the Respondent : Shri V. K. Agrawal, Additional Commissioner (AR) ORDER Per S. S. Garg The present appeal is directed against the order-in-appeal dated 22.11.2004 whereby the learned Commissioner (Appeals) upheld order-in-original No. 120/2004 dated 31.5.2004 vide which it has been held that the processing operations like pun .....

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at the activities like punching, drilling of holes, welding, trimming and galvanizing carried out on duty paid angles, beams and channels etc. did not amount to manufacture. The classification list was approved ex parte by the Assistant Commissioner levying excise duty on the goods mentioned in the classification list. Consequently, the refund claims filed by the appellant were also rejected vide order dated 8.7.1987 as time barred. 2.1 Thereafter the appellant filed a writ petition before the H .....

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uty under sub-heading 7308.90. The appellant filed appeal before the learned Commissioner (Appeals) who upheld the order of the adjudicating authority. Aggrieved by the said order, the appellant is before us by way of this appeal. 3. The learned counsel for the appellant submitted that the impugned order passed by the Commissioner (Appeals) is in gross violation of natural justice and passed without considering the submissions made by the appellant and the same was passed after six months from t .....

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1983 (23) ECR 161 (SC); (iii) Sterling Foods vs. State of Karnataka reported in 1986 (26) ELT 3 (SC); (iv) Chougley & Co. Pvt. Ltd. vs. UOI reported in 1993 (67) ELT 34 (SC); (v) CCE vs. Crescent Chemical Equipment reported in 1990 (48) ELT 458 (T); (vi) Tungabhadra Industries Ltd. vs. CTO reported in AIR 1961 (SC) 412; (vii) CCE vs. Jayant Oil Mills reported in 1989 (40) ELT 287 (SC). He also submitted that the findings of the Commissioner (Appeals) is contrary to and repugnant with the pro .....

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cutting of edges as per design and drawings and galvanizing to prevent rusting. These parts are the parts used in the transmission towers and not attached to earth and cannot e considered as immovable property. He also submitted that the processes carried out by the appellant amount to manufacture as defined in Section 2(f) of the Central Excise Act, 1944. In support of his submissions, he relied upon the following decisions:- (i) CCE, Jaipur-I vs. Telemats India Ltd. reported in 2011 (273) ELT .....

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ay of about 13 days in passing the order by the adjudicating authority, but that does not make the order illegal. Therefore, we reject this argument of the learned counsel. 6.1 The other argument of the learned counsel for the appellant is that there is no change in the form of bought out items by mere punching, drilling, galvanizing etc. and they retain their identity as such. This activity cannot be termed as manufacture and, therefore, no duty is chargeable on such items. Here it is pertinent .....

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nit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, and the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account. 6.2 Further, we find .....

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case of CCE, Hyderabad vs. Deepak Galvanising & Engg. Indus. P. Ltd. reported in 2008 (228) ELT 40 (Tri.-Bang.), 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 t .....

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ed 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 reported in 2015 (315) ELT A90 (AP). Further, galvanization does not bring a new commodity into existence as held by the apex court in the case of Gujarat Steel Tubes Ltd. vs. State of Kerala reported in 1989 (42) ELT 513 (SC). 6.3 Further, it is pertinent to mention that .....

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that the above conclusion of the adjudicating authority is not legally correct in view of the large number of decisions viz. CCE vs. SAE (India) Ltd. reported in 1996 (84) ELT A84 (SC), Standard Industrial Engg. Co. vs. CCE reported in 1988 (38) ELT 196 and Pawar Construction Co. vs. CCE, Chandigarh reported in 2002 (146) ELT 367 (Tri.-Del.), wherein a consistent view has been taken that prior to 1.3.1988 being the date on which the tariff item 7308 was brought into effect, the process of conver .....

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