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Jyoti Structures Ltd. Versus Commissioner of Central Excise, Nashik

2015 (10) TMI 1724 - CESTAT 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. Indus. P. Ltd. reported in [2008 (4) TMI 105 - CESTAT Bangalore]

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ling 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 decide the question of refund as it has held the process as manufacture and liab .....

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nd 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 punching, welding, trimming, drilling of holes, level cutting of edges and galva .....

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vanizing 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 Hon ble High Court against the impugned order and against the rejection of the .....

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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 the date of the order of the Hon ble High Court and thus contrary to the speci .....

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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 provisions of Section 2(f) of the Central Excise Act, 1944. 4. On the other hand .....

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ng. 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 520 (Tri.-Del.); (ii) Mahindra & Mahindra Ltd. vs. CCE, Aurangabad, Chan .....

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hat 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 to mention the definition of manufacture , which is reproduced herein below: .....

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ation 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 that the appellant received the duty paid products viz. angles, MS plates, c .....

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rted 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 to the various parties for manufacture of towers. In our view, the process und .....

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ing & 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 the adjudicating authority in his finding has observed that the sum total of .....

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t 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 converting bare angle into prepared angle will not amount to manufacture. The insta .....

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