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TMI Blog2009 (4) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... heard together and are being disposed of by this common order. 3. These appeals arise from order dated 13-10-97 passed by Commissioner of Central Excise, Indore. By the impugned order, the learned Commissioner has, while holding that in relation to manufacturing activity carried out beyond the jurisdiction of Indore Commissionerate it will have no jurisdiction, rejected the contention of the appellant-assessee that the food processing line is not a manufacturing activity and does not bring about new product and therefore not excisable, and thereby confirmed the demand and levied the penalty. 4. On the strength of certain intelligence report that there was clandestine manufacture and clearance of excisable goods i.e. food processing machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be held manufacturing activity and hence is excisable, more particularly bearing in mind Circular No. 58/1/2002-CX., dated 15-1-2002. While the Commissioner has held that various equipments placed together results into an emergence of new product with distinct function i.e. food processing and therefore it amounts to manufacture of goods in terms of Section 2(f) of the Central Excise Act, 1944. The finding arrived at by the Commissioner in relation to the description of the food processing unit apparently disclose the conclusion by the Commissioner to the effect that different equipments procured and received by the appellant on different dates and even from the places of supplier to the site at Indore the equipments so supplied could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof, and submitted that the Board after taking into consideration various decisions of the Apex court which have been enumerated in the said circular has laid down certain criterias to identify whether particular project can be said to be a manufacturing activity and can be subjected to excise duty. The same discloses that the goods which are incapable of shifting from one place to another for the purpose of marketing, except by dismantling, and in the form of component parts cannot be considered as the movable or excisable goods. 7. Clause nos. (iv), (v) and (vi) of the said Circular reads as under : "(iv) Integrated plants/machines, as a whole, may or may not be 'goods'. For example, plants for transportation of material (such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marketed in the original form and not whether it is actually dismantled or not, into its components. Each case will therefore have to be decided keeping in view the facts and circumstances, particularly whether it is practically possible (considering the size and nature of the goods, the existence of appropriate transport by air, water, land for such size, capability of goods to move on self propulsion-ships-etc.) to remove and sell the goods as they are, without dismantling into their components. If the goods are incapable of being sold, shifted and marketed without first being dismantled into component parts, the goods would be considered as immovable and therefore not excisable to duty." 8. Plain reading of the said guidelines laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed in various decisions delivered by various Courts and Tribunals on the issue. Bearing this in mind and the difficulty which was faced by the Commissioner at the relevant time, the competent authority cannot be blamed for not applying the guidelines under the circular which came into existence much after passing of the order. At the same time, now the law being clear and Board having laid down certain guidelines, in our considered opinion, in the absence of guidelines being applied to the facts of case in hand, it would be proper to send the matter back to the Commissioner to carry out said exercise de novo. 10. We are aware that matter has been remanded by the Apex Court to this Court for a fresh decision consequent to Circular No. 58 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner, Indore could have proceeded in the matter in relation to the machinery and the activities carried out are beyond the territorial jurisdiction of the Indore Commissionerate. All these issues will have to be decided subsequent to basic issue i.e. whether the activity carried out by the appellant is manufacturing or not and the same can be liable to be subjected to levy of excise duty under the Act. 12. In the result, therefore, without expressing our views on any of the points sought to raised in the matter and all the issues being kept open, the appeals are allowed, the impugned order is set aside and the matter is remanded to the Commissioner to decide the same de novo bearing in mind Circular No. 58/1/2002, dated 16-1-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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