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TMI Blog2002 (8) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... fter called as 'Solidmec') are engaged in marketing the products of the first named three units. Shri Hasmukh V. Dodia and Shri D.V. Dodia are the partners in the first units. Smt. Kusumben Dodia is the proprietor of Solidmec. The manufacturing units cleared their goods on payment of duty to the marketing company. The marketing company Solidmec advertises the products, undertakes contracts to supply, erection and commissioning, etc. Each manufacturing units had a brand name. 3. All the units were visited by a team of Central Excise officers. Statements of the partners were recorded. Statements of representatives of the buyers were also recorded. From the statements of the concerned persons it appeared that the M/s. Solidmec marketed entire plants. The various components of the plants were manufactured by the four other units. No single unit manufactured all the components of a plant. What they manufactured were in fact the parts of such plants. These various parts and components were transmitted to the customer's site. The marketing company undertook the installation, commissioning and general supervision. The plant bore the brand name of the marketing company. The warranty was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 565 he held that the benefit of Notification 1/93 was not available to the four manufacturing units. As regards the third allegation he followed the law laid down by the Supreme Court in the case of Sirpur Paper Mills - 1998 (97) E.L.T. 3 and held that the plant assembled at site by M/s. Solidmec amounted to manufacture. He deliberated upon the plea of limitation but observed that the extended period was invocable. Denying the benefit of Notification 1/93 he confirmed duties as below : Name Duty (Rs.) Solid Steel Plants Manufacturers 32,54,717/- Solmec Earthmovers Equipments 37,08,130/- Solid & Correct Engineering Works 36,01,330/- Solex Electronic Equipment 10,86,732/- Solidmec Equipment Ltd. 1,46,71,606/- 5. He also imposed penalties as below : Penalty Name Under 11AC Under 173Q(1) & 226 Solid Steel Plants Manufacturers 22,45,040/- 10,09,677/- Solmec Earthmovers Equipments 28,26,281/- 8,81,849/- Solid & Correct Engineering Works 23,93,896/- 12,07,434/- Solex Electronic Equipment 9,64,722/- 1,22,010/- Solidmec Equipment Ltd. 1,22,85,466/- 23,86,140/- Penalties of Rs. 11 lakhs on Shri S.V. Dodia and of Rs. 12 lakhs on D.V. Dodia under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery detailed enquiry was undertaken in the working of the all the five units. All the relevant documents had been scrutinised by the jurisdictional officers. The fact that the entire production of the manufacturing units were sold to Solidmec was in the knowledge of the department. This is evidenced by jurisdictional Superintendent's letter dated 14-8-1996 and the assessees reply dated 30-9-1996, copies of which were on record. He stated that the current enquiry was launched on in 1999 and was not an extension of the earlier enquiry. On this ground he claimed that the demand was hit by limitation. 7. Shri Nankani also made arguments on related aspects. It was his case that the so called activity of manufacture of plants was undertaken in a number of locations, most of which were beyond the jurisdiction of the adjudicating Commissioner. He stated that on this ground bulk of the demand would not sustain. 8. It was also his claim that duty was quantified wrongly. He claimed that in the case of Srichakra Tyres - 1999 (108) E.L.T. 361, it had been laid down that the invoice value could not be adopted by quantification without giving due deduction therefrom. He claimed that excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other components were purchased from the market. These were erected and commissioned by Solidmec and the cost of erection, commissioning, etc., were charged from the buyers. In these circumstances they deserve to be termed as manufacturers. 14. The second issue is whether the plant could be termed as "goods". The learned Commissioner accepts that this plant is affixed to the ground but holds that it could be readily dis-assembled and was therefore "goods" in terms of the Supreme Court judgment in the case of Sirpur Paper Mills. In this judgment the Supreme Court held that a plant embedded in concrete to ensure its wobble free operation did not make it immovable proper, but that it was marketable goods. This judgment was taken into account by the Supreme Court in a later judgment in the case of Triveni Engineering Works Ltd. (supra). In this case the issue was whether fixing of a steam turbine and alternator amounted to manufacture of a new commodity and whether the resultant products was excisable or not. The Hon'ble Supreme Court held that in the form of plant a new commodity did come into existence. In this case the Court was examining the coverage of Tariff Entry No. 85.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... component parts from the four manufacturing units and also certain other goods from the market. These goods are transported to the customer's site and were erected thereupon under the supervision of M/s. Solidmec who also give a guarantee for its performance. 19. On record a number of invoices issued by the trading unit M/s. Solidmec to a number of buyers were placed. Invoice No. 6/96-97, dated 25-4-1996 shows that the plants and/or the components thereof were shown as bearing "Solidmec" brand. It is not denied that at the point of sale there was no activity of manufacture on the part of M/s. Solidmec. The manufacturing appellants had not denied that the brand name Solidmec is affixed to the plant or the component thereof. It is their case that when the individual goods are despatched from their factory those goods bore their own brand name in each case. It is claimed that the name Solidmec is also displayed only for the sake of identification of the customers. It was also claimed that the brand name of the individual units was much larger in size (47" x 10'') than the name of the marketing company which was of the size 20" x 7½". We find that although the learned Commissioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification. In our opinion the ratio of the judgment applies squarely to the facts of this case. 22. In another order in the case of Vijohn Beauty Tech v. CCE, New Delhi - 2002 (143) E.L.T. 148 where both brand names were displayed the Tribunal granted the benefit on the ground and observation that the manufacturer's name was more prominently displayed than the marketing organisation. 23. In the case of Palsons Drugs & Chemical Industries v. CCE, Calcutta - 1998 (98) E.L.T. 665 the Tribunal had observed that the brand name of the manufacturer were more prominent than the logos and the names of the marketing firm. On this ground benefit of Notification 175/86 was extended. In the case of Rajdoot Paints Ltd. & Ors. v. CCE, New Delhi - 2001 (134) E.L.T. 281 (Tribunal) = 2001 (42) RLT 997 the goods bore, in addition to the brand name of the manufacturer, another label which showed that the goods were made in technical collaboration with a corporate person abroad. In that case also the Tribunal overruled the denial of the notification. 24. The appellants are also relying on the Larger Bench decision of the Tribunal in the case of Prakash Industries v. CCE, Bhubaneshwar 2000 (119) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame of the marketing company in the circumstances described above would not deprive the manufacturing companies of the benefit of the Notification 1/93. The consequential demands would not survive. 28. During the hearing before the Commissioner as also before us the charge that the assessees manufactured not full machinery but the component parts has been admitted. The Commissioner in his order has very fairly given the benefit of the value based notifications and had held that there was a short levy established against the units of the following amounts : M/s. Solmec Earth movers Equipments Rs. 1,97,875/- M/s. Solid & Correct Engineering Works Rs. 2,16,347/- He had observed that this quantum was merged in the quantum of duty; confirmed on account of denial of the Notification No. 1/97. Now that the benefit has been granted the confirmation as made above would survive. 29. Throughout the proceedings the plea of limitation was made by the assessees on the ground that the fact of manufacture and marketing was known to the department from 1996 onwards. Since we have found that the plants erected by M/s. Solidmec did not amount to "goods" and since we have found that the denial of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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