TMI Blog1986 (4) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... lists were submitted under "protest" by the appellant, who maintained that the article did not attract excise duty. Thus the aluminium cans produced by the appellant cannot be described as excisable goods and therefore do not fall within the terms of S. 3 of the Central Excises and Salt Act, 1944 read with Entry 27 of the First Schedule thereto. Appeal allowed. - 1103 of 1972 - - - Dated:- 4-4-1986 - R.S. Pathak, A.P. Sen and D.P. Madon, JJ. R. Thyagarajan, A. Kumar and R.N. Poddar, Advocates, for the respondents. Dr. Y.s Chitale, Senior Advocate(T.M. Ansari, P.K. Ram and D.N. Mishra, Advocates, with him), for the appellant. [Judgment per : Pathak, J.]. - This appeal by certificate granted by the High Court of Allahabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alorem basis on the value as determined under Section 4 of the Act, and that the appellant should send price lists for approval. The appellant, anxious to avoid coercive action, filed price declarations in which the price of aluminium cans was calculated as the cost of production plus a margin of profit of 5 per cent of the cost. The appellant, however, took the position that aluminium cans were neither sold nor were capable of being sold in the market, and therefore could not be described as `goods' for the purposes of the Central Excises and Salt Act, 1944. It was also asserted that the preparation of aluminium cans out of aluminium slugs did not amount to manufacture, and that aluminium cans were merely an intermediate product in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the appellant was of no significance. The learned Judges also held that the production of aluminium cans from aluminium slugs amounted to manufacture and that the aluminium cans could be described as "goods" for the purpose of the Central Excises and Salt Act, 1944. 5. The only contention urged by the appellant before us is that the aluminium cans produced by the appellant cannot be described as "goods" for the purposes of excise duty inasmuch as they are not marketable and are prepared entirely by the appellant for the flashlights manufactured by it. 6. It does seem to us that in order to attract excise duty the article manufactured must be capable of sale to a consumer. Entry 84 of List I of Schedule VII of the Constitution spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omponent in a flashlight. The cans have sharp uneven edges and in order to use them as a component in making flashlight cases the cans have to undergo various processes such as trimming, threading and redrawing. After the cans are trimmed, threaded and redrawn they are reeded, beaded and anodised or painted. It is at that point only that they become a distinct and complete component, capable of being used as a flashlight case for housing battery cells and having a bulb fitted to the case. We find it difficult to believe that the elementary and unfinished form in which they exist immediately after extrusion suffices to attract a market. The appellant has averred in affidavit that aluminium cans in that form are unknown in the market. No sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct of the appellant in the past, having regard to the circumstances of the case, cannot serve as evidence of the marketability of the aluminium cans. Indeed, subsequent price lists were submitted under "protest" by the appellant, who maintained that the article did not attract excise duty. 9. We are satisfied upon the material before us that the aluminium cans produced by the appellant cannot be described as excisable goods and therefore do not fall within the terms of S. 3 of the Central Excises and Salt Act, 1944 read with Entry 27 of the First Schedule thereto. 10. In the result, the appeal is allowed, the judgment and order dated February 22, 1972 of the Division Bench of the High Court of Allahabad are set aside and the judgment a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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