TMI Blog2005 (11) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... an enquiry for imposing excise duty on the raw material, i.e. members such as angles, plates, etc. It was an enquiry to ascertain the value of the parts of the structures which were fabricated such as trusses, ladders, doors, windows, columns, beams, rafters, glazing frames, crane girders, hoppers, bracings, gable runners, platform, hand-rails, gratings rails, walk-ways, stairs, gutter supports, ladders, railings, etc. We have already noted the contractual terms and the relevant statements which clearly indicate that the parts of the structure were first fabricated on the ground and thereafter they were used for erecting the designed structures. In our opinion, all these parts of structures which were fabricated were distinct marketable commodities the existence of which was brought about by the process of manufacture as defined in section 2(f) of the Act. These were not simply members such as angles, etc., with holes or cut to a different size, but the process was undertaken to bring them into a particular commercially known shapes and assemble them for that purpose as per the designs and having fabricated them, to use them for permanently fixing them in the structures which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being goods will not fall under Heading 73.08 of the Excise Tariff. (ii) The structures or parts thereof mentioned in the parenthesis of Heading 73.08 illustrating parts of structures namely, bridges and bridges-sections, lock-gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns as well as parts of structures such as, trusses, purlins, columns, beams, rafters, glazing frames, crane girders, hoppers, bracings, gable runners, platforms, hand-rails, grating rails, walk-ways, stairs, gutters supports, ladders, gantries, railings, portals, pushings, round surged, inserts, drop-boxes, windties, framework partitions, north light glazing, sliding frames and the like articles in their movable state will be subject to excise duty under Heading 73.08, notwithstanding their getting permanently fixed in the structures. (iii) The plates, rods, angles, shapes, sections, tubes, and the like prepared for use in structures of the types covered under the Heading 73.08, as aforesaid, will also be excisable goods subject to duty in their pre-assembled or disassembled state. The reference stands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff covers structures and parts of structures, as therein stated (which are, for convenience, referred to as 'structurals') 4. It was for the Tribunal to determine, as a fact, whether the structurals that the Department sought to make exigible to excise duty in the various appeals before it were new, identifiable goods which were produced as a result of manufacture of processes and which were marketable. Depending upon its conclusion on these aspects in each of the appeals before it, it was for the Tribunal to determined whether or not the goods in question in each of these appeals were exigible to excise duty. 5. In the judgment and order of the Tribunal that is under challenge the Tribunal has failed to consider the facts of even a single of the appeals before it. It has proceeded simply upon the basis that structurals are not exigible to excise duty. It has failed to appreciate that there is a tariff entry which makes structurals exigible to excise duty and that they are so exigible, provided that they are new identifiable goods that are the result of manufacture or processes and they are marketable. 6. It, thus, becomes necessary to set aside the judgment and order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also again cited before us, the Hon'ble the Supreme Court has required this Tribunal to reconsider the matter in the light of the Tariff Item 73.08 which now specifically refers to structures and parts of structures as well as the articles prepared for use in structures. When these appeals came up before the Division Bench of the Tribunal on 11th July, 2005, the Bench was informed that another Bench of the Tribunal had already considered the same issues in some of the remanded matters. Copies of the decisions of the Division Bench in those appeals Nos. E/1000/95, E/396/04, E/2736/91, E/2311/91 decided on 31-5-2005 and E/340/94, E/62/92 and E/440/92 also decided on 30-5-2005 were placed on record. In all those appeals, the Tribunal was concerned with the same question whether structures or parts of structures and other articles made of iron or steel for use in structures were classifiable under Heading 73.08 of the Central Excise Tariff. The Tribunal relying on the earlier decision in Aruna Industries, Vishakhapatnam and others v. Collector of Central Excise, Guntur reported in 1986 (25) E.L.T. 580 and the decision of Wainganga Sahkari S. Karkhana Ltd. v. Collector of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble so as to attract the excise duty under the relevant entry 73.08, as against the contention that there was no manufacturing process involved and the goods were not marketable and hence not excisable. Before we set out the rival contentions raised during a prolonged hearing, we would briefly indicate the type of the goods that according to the Revenue are excisable and are found to be covered under the relevant entries of Heading 73.08 of the authorities below. 6. In Appeal Nos. E/4673-74/89 the show cause notice was issued on 4-7-89 alleging that the appellant had manufactured the excisable articles such as purlins, beams, trusses, etc. at their own factory site at Nasik with the job work rendered by M/s. New Bharat Builders (Bombay) Pvt. Ltd. on job charges basis as per the designs, drawings and specification provided by them. It was stated that similar type of goods were readily available in market being bought and sold and therefore, they satisfied the test of marketability. It was alleged that these structural steel articles fell sub-heading 7308.90 and that they were removed and captively consumed by the appellant in their own factory premises for erection of new sheds, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed were complete or finished goods ready to be fitted to erect the shed. Before becoming part of immovable structure these had attained identity as purlins, trusses, beams, etc. As regards the question as to whether the purlins, trusses, beams, etc. were excisable goods, it was held that they were excisable goods because of their nature, character, description and use coming under the particular Chapter Heading 7308.90. The contention that such type of goods are not known in trade parlance as purlins, trusses, etc. and that they were not marketable and that they came into existence only by their functional use and were not movable goods was rejected in view of Rule 2(a) of Rule of Interpretation of Schedule to the Central Excise Tariff Act, according to which even incomplete or unfinished goods were also classifiable provided that they had the essential character of complete and finished goods and in fact those goods had such essential character even though in that stage they may not be marketed. The contention that the sub-heading 7308.90 came into force only on 1-3-88 and could not, therefore, be made applicable to the period prior to 1-3-88, was also rejected by holding that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructural items made out of MS columns, sections, beams, angles, plates, etc. involving central excise duty to the tune of Rs. 64,79,400.27 as detailed in Annexure B to the show cause notice without filing the classification list and determining and paying central excise duty thereon. The imputations were set out in Annexure A to the show cause notice. It was, inter alia, mentioned in the imputations at Annexure A to the show cause notice that the Senior Engineer of the appellant had deposed that the appellant had manufactured at site the said item out of the raw material like beams, sections, angles, channels, plates, rods, etc. The processes carried out on the raw material for the manufacture of these items were cutting, welding, jointing, drilling and assembling. They were manufactured as per the specific drawings and designs. 6.2 In Appeal No. E/4514/91, it was stated in the show cause notice dated 5-4-91 that the Engineer of the chemical plants of the appellant had in his statement dated 11-1-89, inter alia, stated that the appellant had entered into a contract with IRCON to fabricate the steel structures and parts thereof at their works at village Hussainpur, and that the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the similar grounds. 6.5 In Appeal No. E/2176/92, the Revenue issued show cause notice for Rs. 32,90,683.40 on the ground that the appellant had manufactured steel structures falling under sub-heading 7308.90 of the Schedule to the Tariff Act and removed them without payment of excise duty. The partner of the appellant had in a statement dated 26-12-89 stated that they had undertaken the fabrication work of steel structures and they had fabricated columns, trusses, beams, etc. as per the requirement of M/s. JCT Ltd. He categorically stated that they had fabricated columns, trusses, beams, girders etc. first on the ground that thereafter these were erected by taking them to the actual site of erection in the premises of JCT Ltd., Phugwara. 6.6 In Appeal Nos. E/4150-51/92 as per the show cause notice dated 31-7-91 given to the appellant, they had manufactured steel structures falling under heading 73.08 of the Schedule to the Tariff Act and removed them without payment of excise duty amount to Rs. 50,64,200.66. From the copy of the terms of the contract at Annexure B to the show cause notice, it appears that the scope of work included pre-assembly of fabricated structures i.e. stru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n water pipes which were of the nature of goods capable of being bought and sold and falling under chapter 73 of the Schedule to the Central Excise Tariff Act. 6.9 In Appeal No. E/1244/92, a demand of excise duty of Rs. 23,20,258.74 was made in respect of manufacture of various structurals, namely, beams, columns, portals, pushings and various members of the structural fabricated at the site of the factory. The structurals were first fabricated on the ground and then lifted by the help of derricks, hoists, etc. and installed . Shri T. Bawa in his statement recorded on 8-8-99 had stated that he was a contractor in structural fabrication and that the process of fabrication involved marking, cutting, welding and assembling as per drawings. He stated that these items (structuals) were completely fabricated at site as per the process mentioned by him on the ground and lifted by derricks for erection. He stated that he felt that M/s. Elecon Engineering had to pay excise duty. 6.10 In Appeal No. E/1885/95, a demand of excise duty amounting to Rs. 3,22,195.99 was made on the ground that the documents and facts on record showed that the appellant had manufactured structures of iron an steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 212 affirmed by Supreme Court in 1996 (84) E.L.T. A48 (c) Standard Industrial Engg. Co. Ltd. v. CCE (3 judges) - 1988 (38) E.L.T. 196 (d) Steel Authority of India Ltd. v. CCE (3 judges) - 1988 (36) E.L.T. 316 (e) Pawar Construction v. CCE - 2002 (146) E.L.T. 367 (2 judges) affirmed by Supreme Court in 2003 (151) E.L.T. A296 (f) Sunflag Iron Steel Co. v. Addl. CCE - 2003 (162) E.L.T. 105 (Bom.) (g) Gannon Dunkerely Co. v. Union of India [2003 (156) E.L.T. 467 (Bom.) = 2003 (59) RLT 1 (Bom.)] (h) South India Structural Corporation Ltd. v. ACCE - 1998 (102) E.L.T. 13 (Mad.) (i) Union of India v. Bajaj Tempo Ltd. - 1995 (80) E.L.T. 774 (M.P.) (j) Kinetic Honda Motors v. Union of India - 1996 (81) E.L.T. 48 (M.P.) (k) Shapoorji Pallonji Co. Ltd. v. Union of India judgment of Bombay High Court dated 29-4-2005 [2005 (192) E.L.T. 92 (Bom.)]. It was submitted that as per the above decisions, a consistent view was taken that prior to 1-3-88, being the date on which the Tariff Item 73.08 was brought into effect, the process of converting bare angle into prepared angle will not amount to manufacture. It was submitted that the decisions taking a contrary view in Structurals and Machineries ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 1998 (97) E.L.T. 5 (S.C.) and Siddharth Tubes Ltd. v. CCE reported in 2000 (115) E.L.T. 32 (S.C.), in support of this contention. It was submitted that in such a situation duty will be levied at both the stage, namely, at the stage of bare angle and at the stage of prepared angle. Moreover, if prepared angles are imported as such then they will be chargeable to additional duties of Customs under heading 73.08 and therefore, the entry will not be redundant and will apply to the above situation. It was submitted that since the process of converting bare angles to prepared angles had been consistently held as not amounting to manufacture prior to 1-3-88, the same law will apply even for the period after 1-3-88 and that merely because specific entry was introduced w.e.f. 1-3-88 the process will not amount to manufacture. It was also submitted that even for the period after March 1988, the Madras High Court in South India Structural Corporation Ltd. v. ACCE reported in 1988 (102) E.L.T. 13 (Mad) had held that the mere process of converting bare angles into prepared angles will not amount to manufacture. It was submitted that this judgment of the Madras High Court was bindin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these were not cases where duty was charged merely on prepared angles. In all these cases, various structural items such as trusses, purlins, columns, beams, etc. were fabricated on the ground before erecting the structures at the site. It was submitted that having regard to the definition of factory in Section 2(e) of the Central Excise Act, factory means any premises including the precincts thereof, wherein or in any part of which, the excisable goods are manufacture or any manufacturing process connected with the production of these goods is being carried on and therefore, any premises where the manufacturing process is being carried on, would be factory . He submitted that if the manufacturing process was carried on near about the place where the structure was to be erected, then the process of manufacture will not cease to be such process on the ground that it was not being carried on in some premises registered as a factory under the Factories Act. He also submitted that the Hon'ble Supreme Court had remanded this group of appeal and other appeals setting aside the decision of the Tribunal, in which the earlier decisions of the Apex Court, High Court and the Tribunal wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation evolved by the World Customs Organization. The learned authorized representatives submitted that the word truss in civil engineering connoted series of triangular frames fabricated to support and strengthen a roof or bridge or other elevated structure and that it was not correct to say that trusses were not goods. He submitted that trusses were used in many kinds of machinery, such as cranes and lifts and in aircraft wings and fuselages. He pointed out literature showing that trusses and purlins were offered by the manufacturers as commodities. He also submitted that purlins were a known commodity used for supporting rafters. 8.1 In support of their contentions reliance was placed by the learned authorized representatives appearing for the Revenue on the following decisions :- (a) The decision of the Supreme Court in Empire Industries Ltd. and Others v. Union of India Others reported in 1985 (20) E.L.T. 179 (S.C.) was cited for the proposition that to constitute manufacture it is not necessary that one should absolutely make out a new thing, because it is well-settled that one cannot absolutely make a thing by hand in the sense that nobody can create matter by hand, it is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited for the proposition that it was settled law that for a goods to be marketable it was not necessary that there must be actual instances of sale by the assessee. Marketability is essentially a question of fact to be decided on facts of each case and once it is shown that a product had actually been bought, marketability gets established. (f) The decision of the Supreme Court in Collector of Central Excise, Kanpur v. Gayatri Glass Works reported in 1999 (114) E.L.T. 786 (S.C.) = 2000 (10) SCC 268, was cited to point out that it was held in paragraph 5 of the judgment that molten and broken glass arises at the stage of final manufacture of glass. Molten and broken glass is saleable, for a considerable value. It has utility, inter alia, in the manufacture of glass itself and that it was difficult in the circumstances, to hold that molten and broken glass fall outside the scope of Item 23A of the First Schedule to the Central Excises Salt Act, 1944. (g) The decision of this Tribunal in Appeal No. E/2386/88, was cited for the proposition that when multiple processes bring about a distinct product they would amount to manufacture for the purpose of the excise tariff and that the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are goods for the purposes of Section 3. Even if there was only one purchaser of these articles, it must still be said that there is a market for these articles. The marketability of articles does not depend upon the number of purchasers nor is the market confined to the territorial units of this country. (k) The decision of the Supreme Court in Moti Laminates Pvt. Ltd. v. Collector of Central Excise, Ahmedabad reported in 1995 (76) E.L.T. 241 (S.C.), was cited to point out that it was held in paragraph 10 of the judgment that when rules were amended, a fiction was created that any article produced or manufactured, if captively consumed was statutorily presumed to satisfy the test of marketability and this presumption could be rebutted if it was established that the article produced and captively consumed was neither goods nor marketable nor capable of being marketed. (l) The decision of the Supreme Court in Dharampal Satyapal v. Commissioner of Central Excise, New Delhi, reported in 2005 (183) E.L.T. 241 (S.C.), was cited to point out from paragraph 19 of the judgment that the Supreme Court did not find any infirmity in the impugned judgment of the Tribunal which held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne reported in 1992 (58) E.L.T. 565 was cited to point out that it was held by the Supreme Court that the processing undertaken in the assessee's factory to render the cylinder liner as fully machined resulted in changing the goods from crude cast iron in size and shape to an identifiable commodity. The duty of excise is on manufacture of a goods and not on its use. Reasons : 9. The Tariff Heading 73.08 relates to structures (excluding pre-fabricated buildings that fall under Heading 94.06), parts of structures of the types illustrated in the parenthesis, and articles prepared for use in structures of iron and steel. It is a trite thing to state that the excisable goods covered by this Heading 73.08 under their description in column 3 do not include immovable structure. The heading obviously includes structures, parts of structures, or articles prepared for use in structures in their state of movability when they are excisable goods. The liability that may arise on manufacture of structures, parts of structures or articles prepared for use in structures cannot vanish by fixing them on a structure embedded in land and making them a part of immovable property such as constructed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading :- This heading covers complete or incomplete metal structures, as well as parts of structures. For the purpose of this heading, these structures are characterized by the fact that once they are put in position, they generally remain in that position. They are usually made up from bars, rods, tubes, angles, shapes, sections, sheets, plates, wide flats including so called universal plates, hoop strip, forgings or castings, by riveting, bolting, welding, etc. Such structures sometimes incorporate products of other headings such as panels of woven wire or expanded metal of heading 73.14. Parts of structures include clamps and other devices specially designed for assembling metal structural elements of round cross-section (tubular or other). These devices usually have protuberances with tapped holes in which screws are inserted, at the time of assembly, to fix the clamps to the tubing. Apart from the structures and parts of structures mentioned in the heading, the heading also includes products such as : Pit head frames and superstructures; adjustable or telescopic props, tubular props, extensible coffering beams, tubular scaffolding and similar equipment; sluice-gates, piers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also extensively used by governments, international organizations and the private sector for many other purposes such as internal taxes, trade policies, monitoring of controlled goods, rules of origin, freight tariffs, transport statistics, price monitoring, quota controls, compilation of national accounts, and economic research and analysis. The HS is thus a universal economic language and code for goods, and an indispensable tool for international trade. The Harmonized System is governed by 'The International Convention on the Harmonized Commodity Description and Coding System'. The official interpretation of the HS is given in the Explanatory Notes published by the WCO. The Explanatory Notes are also available on CD-ROM, as part of a commodities actually traded internationally. 10. There can be no dispute over the proposition that immovable property, be it immovable steel structure embedded in earth or a constructed building, cannot be subjected to excise duty which applies to excisable goods, i.e. to movables. In the making of an immovable structure or building are used a variety of movable. Raising iron and steel structures like sheds involves fabrication work and many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such designed structure in their pre-assembled or disassembled form are prepared for use in the said structure, namely porta cabin. One cannot, with any conviction or authority, say that these dismantled parts of the structures are raw material used in its original form and that mere cutting or drilling holes has made no difference. The items in the parenthesis of Heading 7308 described as excisable goods include roofs, roofing frame-work, doors, windows and their frames, thresholds for doors, shutters, pillars, column, balustrades pillars, sheets of iron and steel, each one of these items has a complete distinct identity. The contractor undertaking the works contract for erecting a structure may not himself manufacture all such items used for structure. He may order the doors and windows to be made by a particular manufacturer and roof frame-work by the other, depending on the specialization and expertise of the manufacturer of different items. The contractor may supply designs and raw material for various parts of structures and get the work done on job work basis. To save time and expenses he may get the fabrication done at the site of construction instead of getting it done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts include a huge range of purlins in C and Z profiles for use as roof purlins or wall girts all cut to length. A snap-in purlin bridging system for quick installation was also widely known. 11. Thus, when a truss is fabricated a distinct article is brought into existence different from mere raw material, namely angles or tubes used in making of the truss. Large industries have thrived in the manufacture of trusses and purlins of use in the erection of steel structures and there is a huge market world over for such products as is clear from the advertisement issues by the manufacturers of iron and steel structures such as stramit roofing, walling, rain water and structural products referred to during the hearing. Truss prices are listed on the websites for various spans of trusses with delivery information, by those dealing in building supplies. 11.1 It is, therefore, difficult to view that trusses which are rigid frame-work to support roofs, bridges, cranes, etc., have no existence as a recognizable item of commerce because a truss is only a function as opined by the Hon'ble Member (T) in paragraph 26 of the judgment in Aruna Industries (supra). The mix-up of the expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in a factory . In the context of these contentions, it was held in paragraph 20 of the judgment : From the facts of the present case, it is clear that the shed was erected stage by stage and step by step right from the foundation till the fabrication of the roof . In paragraph 22 of the judgment it was held that even assuming that there is a manufacture, we have to find out if the goods were manufactured in a factory. The explanation to Notification No. 46/81 indicated that he expression factory has the meaning assigned to it in clause (m) of Section 2 of the Factories Act. It is common case that the respondents erected the structures on the site allotted to them by VSP. It was urged on behalf of the respondents that an open yard could never be a factory. In AIR 1962 SC 29 (Ardeshir H. Bhiwandiwala v. State of Bombay (now Maharashtra) it was held that the expression premises must not be restricted to mean building and be taken to cover open land as well. In that case, even the salt works were treated as factory. But on the facts of the present case, we have already held that the assessees were only erecting a construction and that they were fabricating the materials on the spot. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than goods manufactured in a factory, from the whole of the duty of excisable leviable thereon : Provided that nothing contained in this notification shall apply to sandal wood oil. Explanation - In this notification, the expression 'factory' has the meaning assigned to it in clause (m) of Section 2 of the Factories Act, 1948 (63 of 1948). 2. This notification shall come into force with effect from the 1st day of April, 1981]. [Notification No. 46/81-C.E., dated 1-3-1981 as amended by Notification No. 92/81-C.E. dated 1-4-1981 and No. 74/83-C.E., dated 1-3-1983] It is the above exemption notification on the basis of which structurals in Aruna Industries and group of other appeals which were fabricated at the site of the construction and not any factory as defined in Section 2(m) of the Factories Act, were found to be not liable to excise duty. The definition of the word factory as given in Section 2(m) of the Factories Act, 1948, is reproduced below : - 2(m) factory means any premises including the precincts thereof - (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on 11.5 The decision in Aruna Industries (supra) was in respect of structurals manufactured in open site i.e. otherwise than in a factory as defined in section 2(m) of the Factories Act, which were exempted from excise duty under the said notification issued in the context of the Tariff Item 68. The First Schedule which contained Tariff Item 68 was omitted by Section 4 of the Central Excise Tariff Act, 1985. The ratio of the decision in Aruna Industries and all other decisions which have followed it has to be viewed in the background of the exemption notification issued in respect of goods manufactured otherwise than in a factory as defined in Section 2(m) of the Factories Act and the Tariff Item 68 of the First Schedule which was omitted. 11.6 We may now refer to the contention that Aruna Industries has been affirmed by the Supreme Court in Commissioner of Central Excise, Nagpur v. Wainganga Sahakari S. Karkhana Ltd. (supra). The order made by the Supreme Court in Wainganga is reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion by this Tribunal pursuant to these matters having been remanded by Hon'ble Supreme Court after setting aside the decisions earlier given in these appeals in which the ratio of Aruna Industries was followed. 12. As noticed hereinabove, the first part of Tariff Heading 73.08 deals with structures and parts of the structures of the nature, which are enumerated in the parenthesis and which are made of iron and steel, while the latter part refers to the articles named therein which are prepared for use in structures of iron and steel. Bridges and bridge-sections, Towers and lattice masts. Doors, windows and their frames and thresholds for doors, Props and similar equipment for scaffolding, shuttering or pit-propping, are items from those enumerated in the parenthesis, falling under sub-headings 7308.10, 73.20, 7308.30 and 7308.40. The article mentioned in the parenthesis are only illustrative and indicated by ways of examples. Roofs, roofing frame-work, shutters, balustrades, pillars, columns which are also in the parenthesis are not mentioned in the aforesaid sub-headings and they would, therefore, fall in the residuary sub-headings 7308.90 - Other , and, these too would be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual terms and the relevant statements which clearly indicate that the parts of the structure were first fabricated on the ground and thereafter they were used for erecting the designed structures. In our opinion, all these parts of structures which were fabricated were distinct marketable commodities the existence of which was brought about by the process of manufacture as defined in section 2(f) of the Act. These were not simply members such as angles, etc., with holes or cut to a different size, but the process was undertaken to bring them into a particular commercially known shapes and assemble them for that purpose as per the designs and having fabricated them, to use them for permanently fixing them in the structures which were to be erected as per the design under the works contracts. 13. There can be no dispute over the proposition that it is always open to the assessee to prove that even though the goods in which he was carrying on business were excisable goods being mentioned in the Schedule, they could not be subjected to duty as they were not goods either because they were not produced or manufactured by it or if they had been produced or manufactured they were not marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey can be sold. The owner of a commodity does not have the power to sell it to any person of his choice. The owner has no choice of selling his commodity to persons who have no requirement of it, who are prevented by legal or physical circumstances from purchasing it, or who have no knowledge of the availability of the offer. The marketability of commodities is also limited with respect to the area within which they can be sold. For a commodity to be sold in anyone place, it is also necessary that there must be a number of persons to whom it can be sold, that there be no physical or legal barrier to its transportation to that place or to its being offered there for sale, and that the cost and expenses of transportation shall not exhaust the gain that can be derived from the expected opportunity to sell. There are commodities, which as a result of spatially limited requirements for them, can be sold only in a single town or village, others that can be sold only in a few provinces, some only in a certain country, others in all civilized countries, and still others that can be sold in all the inhabited parts of the world. Again, the marketability of a commodity is restricted quantita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, in our opinion all the above items fall under Heading 73.08 are marketable commodities. 14. When a part of structure is prepared and disassembled, the members thereof will be angles, rods etc., prepared for use in such structure. These are not angles, or plates merely cut or drilled without reference to a particular structure. The later part of Heading 73.08 would apply to the members such as plates, rods, angles, etc., that are prepared for use in structures or their parts in their pre-assembled or disassembled state of an identifiable article of the types of the parts of structures covered under Heading 73.08. Answer to the question referred : 15.For the foregoing reasons, we are unable to accept any of the contentions raised on behalf of the appellants and we answer the question referred to us as under:- (i) The immovable iron and steel structures not being goods will not fall under Heading 73.08 of the Excise Tariff. (ii) The structures or parts thereof mentioned in the parenthesis of Heading 73.08 illustrating parts of structures namely, bridges and bridges-sections, lock-gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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