1997 (11) TMI 276 - AT - Central Excise

Summary

Issues Involved:

1. Whether the activities undertaken by M/s. Binny Limited, through their sub-contractors, amounted to manufacture of items/goods chargeable to duties of Excise.
2. Who is to be treated as the manufacturer of these goods, liable to pay the duty of excise - M/s. Binny Limited or their sub-contractors.
3. How the appropriate valuation of the goods so manufactured should be worked out to quantify the duty liability.
4. Whether duty could be demanded for the extended period of 5 years under Proviso to Section 11A(1) on grounds of wilful mis-statement/suppression of facts.
5. Whether the two Noticees, particularly M/s. Baghpat Cooperative Sugar Mills, are liable for penal action under the relevant provisions of the Central Excise Act and Rules.

Issue-wise Detailed Analysis:

1. Manufacture of Items/Goods Chargeable to Duties of Excise:

The Tribunal examined whether the fabrication and erection activities carried out by M/s. Binny Limited at the site of M/s. Baghpat Cooperative Sugar Mills amounted to the manufacture of excisable goods. It was determined that while fabrication brought certain goods into existence and erection involved embedding these goods to the earth, the crucial factor was marketability. Since the fabricated and erected goods were not marketable and were embedded to the earth, they did not qualify as goods under excise law. Therefore, they were not chargeable to excise duty.

2. Identification of the Manufacturer:

The Tribunal considered who should be treated as the manufacturer liable to pay excise duty - M/s. Binny Limited or their sub-contractors. It was noted that M/s. Binny Limited had appointed sub-contractors who were independent entities with their own workforce and specialization. The relationship between M/s. Binny Limited and the sub-contractors was on a principal-to-principal basis, not that of master and servant. Therefore, the sub-contractors were deemed the manufacturers, not M/s. Binny Limited.

3. Valuation of Goods:

Given the determination that the goods were not excisable, the Tribunal held that the question of their valuation and duty liability did not arise. Since the goods were not subject to excise duty, no valuation was necessary.

4. Extended Period for Duty Demand:

The Tribunal did not discuss the applicability of the extended period for duty demand under Proviso to Section 11A(1) in detail, as it had already concluded that the goods were not excisable. Thus, the issue of invoking the extended period was rendered academic.

5. Liability for Penal Action:

The Tribunal found that since the goods were not excisable, the imposition of penalties on M/s. Binny Limited and M/s. Baghpat Cooperative Sugar Mills was not warranted. The lack of excisability of the goods negated the basis for penal action.

Conclusion:

The Tribunal set aside the impugned order, allowing the appeal. It concluded that the goods were not excisable due to their lack of marketability and their embedding to the earth, and thus, M/s. Binny Limited was not the manufacturer. Consequently, no duty or penalties were applicable, and the appellants were entitled to consequential relief in accordance with the law.