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TMI Blog1991 (2) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Department has held that these aluminium frames are goods falling under Heading 8307.00 of the Central Excise Tariff and subsequently held these as classifiable under Heading 8302.90. 3. The appellants claim that the Department has all along been aware of the production of the aluminium frames and no suppression can be attributed. In the earlier proceedings about classification of plastic shells emerging as an intermediate stage in the course of manufacture of suit-cases, the officers had known about the machines installed in the factory for making the aluminium frames and the Collector had in the proceedings made note of the process of manufacture about the aluminium sections and making of aluminium frames. The appellants had informed the Assistant Collector vide their letter, dated 24-4-1985, about recovering aluminium scrap generated during process of bending duty paid aluminium section into frames. That during the period from 1982-86, the audit parties had visited the factory and the process of manufacture was within the knowledge of the department. The appellants had submitted the classification list effective from 28-2-1986, with the introduction of the new tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emerged and had cited the decision of the Hon ble Supreme Court in the case of Empire Industries Ltd., reported in 1985 (20) E.L.T. 179 for determining the term manufacture . On the limitation aspect, the Collector has stated that the letter dated 24-9-1982 of the appellant, addressed to the Range Superintendent describing the manufacture of travel goods, makes an incidental remark that aluminium frame is prepared by bending aluminium section, which will not tantamount to making a declaration. The learned advocate submitted that the process of bending and drilling do not amount to manufacture. He cited the following case laws in his favour. (i) 1989 (40) E.L.T. 280 (SC) - Bhor Industries Ltd. v. The Collector of Central Excise, on marketability - It should be goods known in the market. (ii) 1989 (43) E.L.T. 214 (SC) - The Collector of Central Excise v. Ambalal Sarabhai Enterprises - Captive consumption no evidence of marketability. (iii) 1978 (2) E.L.T. (J 159) - Hindustan Steel Ltd. v. State of Orissa in respect of penalty for technical breaches. (iv) 1985 (20) E.L.T. 120 (Tribunal) - The Collector of Central Excise, Madurai v. M/s. Sun Paper Mills Ltd., Cheranmahadevi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incidental or ancillary to the process of manufacture. The goods being captively consumed, he relied on the decision of the Supreme Court reported in 1987 (32) E.L.T. 234 (SC), J.K. Spinning and Weaving Mills Ltd., and another v. Union of India Others. In respect of the case laws cited viz, 1989 (40) E.L.T. 280, Bhor Industries Ltd. v. Collector of Central Excise, 1989 (43) E.L.T. 214 (SC), Collector of Central Excise v. Ambalal Sarabhai Enterprises and 1985 (21) E.L.T. 3 (SC), Indian Aluminium Cables Ltd. v. Union of India Others. The learned JDR stated that the products in these cases, they were not complete products and even as per the case law, Union Carbide India Ltd. v. Union of India Others, reported in 1986 (24) E.L.T. 169 (SC), he distinguished the same by stating that these referred to rough unfinished products, not capable of being sold in the market, unlike the appellant s products. On the aspect of limitation, that the activity of the manufacture of frames was within the knowledge of the department, it was contended by the learned JDR, that the appellant had not declared the manufacture of frames in the classification list, and he relied on the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, where an item manufactured is covered by a tariff item, it becomes an excisable goods. The definition of excisable goods means goods specified in the (Schedule to the Central Excise Tariff Act, 1985) as being subject to a duty of excise and includes salt," (the Central Excise Tariff Act is later substituted). Hence, where specific entry in the Tariff is applicable to the goods, manufactured, they become excisable, hence, as between 8307 or 8302.90, the aluminium frames are excisable goods and hence the concept of marketability as contended and urged by the appellant is not the determining factor. The next question is, whether there was any suppression, the appellants have stated that the manufacturing process of moulded luggage, whereby aluminium frames are manufactured, and these references to the same in the classification list, will tantamount to have made the Department aware of the manufacturing activity and no suppression is involved. They plead that when the new Tariff Act came into force, they submitted a fresh classification list 1/85-86, effective from 28-2-1986, and along with it, they submitted a detailed process of manufacture which referred to manufacture of al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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