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TMI Blog2024 (6) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... se Duty on the items manufactured and cleared to the principal manufacturer; accordingly, two Show Cause Notices were issued, covering the period 2006-07 to 2008-09 and 2009-10, demanding Central Excise Duty of Rs.29,84,248/- and Rs.54,453/- were issued; the same were confirmed by the Original Authority and were upheld by the impugned orders dated 19.08.2010 and 16.08.2011. Hence, these appeals. 2. Shri N.K. Sharma, assisted by Shri Kapil Gautam, learned Counsels for the appellants, submits that the processes undertaken by them on the aluminum ingots received from their principal manufacturers does not amount to manufacture as held in the case of Alumeco India Extrusion Ltd. - 2010 (249) ELT 577; the facts of which are identical to the impugned case. He also relies on Hon'ble Apex Court's judgment in the case of Moti Laminates Pvt. Ltd. - 1995 (76) ELT 241 (SC) wherein it was held that goods become dutiable only when they are marketable. 3. Learned Counsel submits that there is a provision under Rule 16A of the Central Excise Rules, 2002 to enable the manufacturers to remove inputs as such or after partial processing to job-worker for further processes. Their principal manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled to send their inputs to job-workers for further processing. On a factual matrix, it appears that the Department was aware of the fact that the M/s Auto Ignition Ltd. were sending inputs to their job-workers for further processing. 6. Learned Counsel for the appellants submits that though they were receiving goods under Rule 16A, by oversight the challans were being mentioned to be under Notification No.214/86. To that extent, we find that the argument of the appellant is acceptable and substantial benefit taken under intimation to the Central Excise Authorities cannot be denied for wrong mention of the Notification. Moreover, we find that even if the principal manufacturer is at fault or is not eligible to send inputs either under Rule 16A or under Notification No.214/86, the appellants cannot be fastened with the burned of payment of Excise Duty. The appellants have received the inputs from the principal manufacturer and have sent back after doing the processes for which they have collected the job charges. The resultant goods were not cleared from the premises of the jobworkers to independent buyers. The appellants submits that the ingots received by them for job-work do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Frist Schedule to the Central Excise Tariff Act, 1985, under Chapter Heading No. 7604 and hence the said Aluminium Extrusions /profiles are excisable goods. Further, these excisable goods are manufactured in India i.e. by M/s. AIEL, Hyderabad. The definition of "manufacture" under Section 2(f) of Central Excise Act, 1944 is not confined to the natural meaning of the word but is an expansive definition. The question whether a particular process does or does not amount to manufacture is always a question of fact to be determined in the facts of a given case applying the principles enunciated by the Hon'ble Supreme Court. One of the main test evolved by the Court is whether on account of processes employed or applied by the assessee, the commodity so obtained is no longer regarded as the original commodity, but is, instead, recognized as a distinct and new article that has emerged as a result of the process as held by the Hon'ble Supreme in the case of M/s. Ujagar Prints case- 1988 (38) E.L.T. 535 (S.C.) and Collector v. S.D. Fine Chemicals - 1995 (77) E.L.T. 49 (SC). Now in the present case, the raw materials i.e. Aluminum ingots were used in the manufacture of Aluminium Ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they are excisable goods. It is his finding that the definition of "manufacture" includes everything, which undergoes a change. We find that the learned Adjudicating Authority has misdirected himself on this ground. The Hon'ble Supreme Court in the following cases has clearly held that "marketable" means the goods which are known to the market in which they are known. The case laws are : (a) Moti Laminates Pvt. Ltd. v. CCE - 1995 (76) E.L.T. 241 (S.C.) (b) Hyderabad Industries Ltd. v. Union of India - 1995 (78) E.L.T. 641 (c) UOI v. Sonic ElectrochemPvt. Ltd. - 2002 (145) E.L.T. 274 (S.C.) (d) UOI v. Delhi Cloth & General Mills Co. Ltd. - 1997 (92) E.L.T. 315 (S.C.) 14.2 All the above referred case laws clearly cover the issue in favour of the appellant in respect of the marketability. 15. Further, it is well settled law that the burden to prove marketability is always on the revenue and not on the assessee. This issue is settled by the Hon'ble Supreme Court in the case of Collector of Central Excise v. Ambalal Sarabhai Enterprises as reported at 1989 (43) E.L.T. 214 (S.C.). This principle has been followed by various decisions and it was held that if there is manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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