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2016 (9) TMI 939 - CESTAT NEW DELHI

2016 (9) TMI 939 - CESTAT NEW DELHI - 2016 (342) E.L.T. 262 (Tri. - Del.) - 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 con .....

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ral Excise, A.P. [2007 (8) TMI 350 - SUPREME COURT OF INDIA] held that in order 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 s .....

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016 - Dated:- 1-9-2016 - Dr. Satish Chandra, President And Mr. B. Ravichandran, 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 .....

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er heading 7308.90. The matter was once decided by the original authority and 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 w .....

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of excisable goods. 3. We have heard both the sides and examined the appeal 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 .....

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of all raw materials and he also submitted that all intermediate parts go into 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 S .....

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d hold that the goods manufactured by the petitioner, as has been analysed by 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 h .....

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