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M/s Om Metal Infraproject Limited, Dharam Prakash Kothari, Vikas Kothari, Sunil Kothari, Lal Chand Gupta, Manager M/s Gupta Engg. Works, Lal Chand Gupta, Prop. M/s Singhal Enterprises Versus CCE, Jaipur

2016 (9) TMI 939 - CESTAT NEW DELHI

Manufacture - marketability - Duty liability - goods got fabricated by the appellant from the job workers - appellants engaged in fabrication of gates and gate parts for irrigation project using M.S. Sheets, Plates, Angles etc. - items were made as per specifications of the project and are not regularly traded items - Held that:- the original authority presumed marketability on the basis that even a single buyer will constitute the market. We find in the present case the specified parts of irrig .....

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der to constitute goods twin tests have to be satisfied, namely, process constituting manufacture and secondly marketability. It is well-settled that goods are manufactured with the object of being sold in the market. If the goods are not capable of being sold then the test of marketability is not fulfilled. Further, the burden is on the Department to prove whether there is the process which constitutes manufacture and secondly whether the product is marketable. The Hon’ble Supreme Court conclud .....

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an, Member (Technical) Shri Amit Jain, Advocate for the appellant Sh. Vijay Kumar, Advocate for Lalchand Gupta Shri G. R. Singh and Ms. Neha Garg, DRs for the Respondent ORDER Per B. Ravichandran All these appeals are directed against order dated 24.08.2007 of Commissioner of Central Excise, Jaipur-I. The main appellant (M/s Om Metal Infraproject Limited) are engaged in the manufacture and fabrication of Hydel and radial gates liable to Central Excise duty. The main appellant is sending various .....

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d in appeal the Tribunal vide Final Order dated 07.08.2001 remanded the matter for a fresh decision. The Tribunal directed the original authority to examine whether the activities undertaken by the appellant will amount to manufacture and also applicability of ratio of the decision of Hon ble Karnataka High Court in Thungabhadra Steel Products Ltd. vs. Union of India 1998 (98) ELT 334 (Kar.). The present impugned order was passed on such remand direction. We find the original authority examined .....

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records. The admitted facts are that the appellants are engaged in fabrication of gates and gate parts for irrigation project using M. S. Sheets, Plates, Angles etc. These items were admittedly made as per specifications of the project and are not regularly traded items. We note that the Hon ble Karnataka High Court in Thungabhadra Steel (supra) examined similar set of facts. In that case the appellant pleaded that the parts fabricated for a particular project/ job are not useful for any other .....

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to the products and the final structure is emanating; each part is easily identifiable as they are made up of all raw materials and though the final product consisting of all raw materials, which becomes an immovable property, is not liable for duty; the other identifiable part that goes to make the final product is liable to duty and this aspect has not been considered by either the Division Bench of this Court or the Supreme Court. We are unable to agree with this submission. In our opinion, b .....

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y the Department, are not liable to excise duty. 4. We find that the original authority distinguished the above decision and concluded the appellants are liable to excise duty. On careful examination of para 23 of the original order we find that the attempted difference, in fact and law, is fallacious. He recorded that the impugned goods came into existence after several process of manufacture and the resultant product has distinct name, character and use. Since they are movable and marketable t .....

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