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TMI Blog1997 (3) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission from the Department. Thereafter, the petitioner approached the respondents and sought for permission to clear the goods provisionally after executing a bond for the alleged duty liability. The said request was turned down and hence the above Original Petitions were filed. 3.According to learned Counsel for the petitioners the demand of the Assistant Commissioner to pay duty is arbitrary and illegal and violative of their fundamental rights of an assessee under Article 14 of the Constitution of India. According to him, the Central Excise Department is not entitled to demand duty without adjudication and in any event they must be allowed to clear the goods on execution of a bond as it had been done in the case of the petitioner in O.P. No. 617 of 1997 as per the directions of this Court in O P. No. 20386 of 1996. Learned Counsel for the petitioners also submitted that the cross arms are not excisable in so far as the fabrication work done in respect of the cross arms cannot be said to be one that tantamounts to manufacture. 4.A counter affidavit has been filed on behalf of the respondents. It is stated that the Original Petitions are premature and the filing of the Origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e units are manufacturing excisable commodities they will be liable to pay excise duty before it is being removed from their factory. There is no provision to remove the goods on an undertaking or a bond if the goods are excisable. Petitioners have stated in the Original Petitions that they are engaging in fabrication of various line materials such as cross arms. It is stated that insofar as the fabrication work done in respect of the cross arms is concerned it will not amount to manufacture. On the other hand in the statement filed on behalf of the respondents it is stated as follows : "Cross Arms can be defined as a product made out of M.S. Angles/Channels for use in the transmission lines for supply of electricity. Duty paid MS Angles are brought into the factory and are subjected to various processes as required. There are various categories of cross arms like 2-line, 4-line, V-Cross Arms, etc. The MS Angles are first cut into the required size and then holes are put as required. In the case of V-Cross arms welding is also done. Once these processes are over, it no longer remains as MS Angles and it has got a separate character and identity as "Cross Arms". Cross Arms once man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules provides time and manner of payment of duty. As per this Rule no excisable goods shall be removed from any place where they are produced, cured or manufactured or whether for consumption, export or manufacture of any other commodity in outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules. Elaborate provisions have been set out relating to the removal of manufactured goods. Rule 9B provides for provisional assessment to duty. Rule 47 deals with the goods that may be stored without payment of duty. Rule 49 deals with the duty chargeable only on removal of the goods from the factory premises or from an approved place of storage. Rule 50 deals with the requirement of non-excisable product not to be removed without permission. Rule 51 deals with packing and weighment of goods. Rule 51A deals with the removal of goods after payment of duty. Rule 52 deals with the clearance on payment of duty. Rules 53, 54 and 55 deal with the returns to be filed by the manufacturer. Rule 56B deals with the special procedure for removal of finished excisable goods or semi-finished goods for certain purposes. Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearly and the matter being at the adjudication stage, prima facie I am satisfied that the manufactured materials are excisable goods and they have jurisdiction to assess it as such. It is for the petitioners to establish the case before the adjudicating authorities otherwise. 10.In this case the authorities have as a matter of fact set out in clear terms the nature of article that has been manufactured whereas the petitioner has not come forward with the correct nature of manufacture to contradict the stand of the respondents. In such circumstances inference has to be obviously against the petitioner, on his own showing the petitioner is making a new article out of the manufacturing process. In R.S. Steel Works v. Collector of Central Excise - 1993 (64) E.L.T. 469 the Tribunal found that process of sizing and cutting of duty paid MS Angles and sections will not amount to manufacture. They form part of transmission tower as steel angles. In that case they were concerned with transmission towers made up of MS Angles. Transmission towers were formed by assembling these sections whereas this case is concerned with an entirely different commodity created out of steel angles. They a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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