2000 (12) TMI 438 - AT - Central Excise

Summary

Issues:
1. Whether fabrication of parts used to construct metal structures amounts to manufacture requiring duty payment.
2. Duty demand on structural elements forming part of ammonia storage tank.
3. Duty demand on structural elements for factory use.
4. Whether fabrication of elements permanently attached to earth is considered manufacture.
5. Whether assembly of sub-assemblies into an immovable structure results in a new commodity liable to duty.
6. Whether goods intended to form part of immovable structure are excisable goods.
7. Determination of marketability of goods.
8. Commissioner's decision on marketability and limitation aspects.

Analysis:
1. The appeals revolve around the question of whether fabrication of parts used in constructing metal structures constitutes manufacturing necessitating duty payment. In the case of Petrofils and Nila, the Collector found that fabrication of elements permanently attached to earth does not amount to manufacture as simple operations like cutting and drilling do not create a new commodity. This decision was upheld citing the Bombay High Court judgment that such activities do not constitute manufacture.

2. In Appeal E/1033/96, a different scenario emerged where sub-assemblies were assembled into a specific structure before being fitted into an immovable structure. The argument was made that this assembly process could result in a new commodity liable to duty. The Tribunal noted the distinction from the previous case and remanded the matter to the Commissioner for a fresh decision on marketability and limitation aspects.

3. The issue of marketability was crucial in determining whether the goods in question were excisable. While the goods were tailor-made for Petrofils, the question of marketability arose as they were intended for a specific purpose. The Tribunal emphasized the need for marketability as a prerequisite for excisable goods and remanded the decision to the Commissioner to determine marketability, reminding the department of the onus of proving marketability.

4. Additionally, the matter was remanded to the Commissioner to decide on the limitation aspect concerning the extended period for duty demand. The Commissioner was directed to consider evidence from both sides and make a fresh decision on the issue of marketability and limitation. The appeal was allowed, the previous order set aside, and the matter remanded for further consideration by the Commissioner.