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TMI Blog1997 (5) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... minium sheets on which it carries out the process of cutting, purching, bending, painting etc. according to the necessary specifications. After the said processes are carried out, the aluminium materials are carried to the sites of customers, where in combination with the hardware materials and the aluminium sections purchased from the open market, false ceilings and partitions are erected at the sites of the customers. Thus the false ceilings and partitions which are immovable property, come into existence only at the site of the customers. The work that is carried out at the factory, as aforesaid, consists merely of cutting, purching, bending and painting the aluminium sheets. It is the contention of the respondent that the above actions do not constitute manufacture as no new product having any distinctive name, character or use come into existence. The respondent claimed exemption under Notification 187/84, dated 1-8-1984. 3. The Asstt. Commissioner passed the Order-in-Original by holding inter alia, that the products of aluminium will not be covered as angles, shapes and sections under sub-heading 7603.10 and would correctly fall under sub-heading 7613.90. He also held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to buttress the argument that in discharging their obligations of the respondents arising under works contract the angles etc. are imbedded in the immovable property in that they are attached to the earth hence there cannot be any excise duty on the immovable property. 6. We have considered the rival submissions. The activities of the respondent assessee have been described in paragraph 2 supra. In the classification list submitted by the respondent stated as follows: We are purchasing Galvanised plain sheets from open market and the sheets are subjected to the process of shearing on shearing machine and then a desired form is given on the press/bending machine and then fabricated forms (Slotted T. Laveler strip and ceiling hander etc.) is subjected to the process of Punching on Punching Machine. The assessing authority A.C. had held as follows : As regards the process of manufacture Aluminium sheets and galvanised plain sheets are purchased from the market and subjected to the process of shearing on shearing machine and desired shape is given on the press/bending machine. Some of these materials are subjected to process of punching on the punching machine. Thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structurals, as against simple acts of cutting or welding which does not change the identity of raw material which have gone into their making. Therefore, such an activity must be held to be manufacture. The result is that their job work value would have to be included in the value of clearances for the purposes of Notification No. 89/79-C.E. If the work carried out by the appellants was considered in violation, one might be led into concluding that it does not constitute manufacture, but if the nature of work is examined with reference to contract it would certainly called manufacturing activity. The appellant claim that processes done by the appellant should not be examined with reference to contract cannot be accepted when the appellants themselves have filed the contract on evidence in support of their plea. There is no reason why the same should be excluded from consideration when part of it is found against them. From the above it will be clear that the tribunal had interpreted and considered the activity of the assessee with reference to the resultant final product and the contract between the assessee contractor and its counterpart viz. other party to the contract. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the difference between the two cases. He states that the assessing authority viz. Asstt. Commissioner had found as follows: As regards the process of manufacture, aluminium sheets and galvanised plain sheets are purchased from the market and subjected to the process of shearing on shearing machine and the desired shape is given on the press/bending machine . The shearing process, it is argued by Shri S.V. Singh that is the distinguishing feature in this case which was absent in Ajit India s case. We have carefully considered the effect of the argument. It is having much force. As held by us in the previous paragraph, uncut, unpunched, undrilled sheet is different from cut, punched drilled sheet. In same way sheared sheet is different from unsheared sheet. If in a commercial transaction a party wants a sheared sheet, duly cut, punched, drilled and if another party to contract give unsheared, uncut, unpunched and undrilled sheet, then in that case is former bound to accept the latter described goods - obviously not. Hence, the distinctions in respect of both cases is the shearing process which distinguishes one case with the other. Hence, in our view the decision of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore use. The court following the decision of its earlier decision in the case of Quality Steel Tubes P. Ltd. v. Commissioner of Central Excise - 1995 (75) E.L.T. 17 (S.C.) held in favour of the assessee. While doing so it distinguished the case decided by it earlier in the case of Narna Tulaman Manufacturers (P) Ltd. v. CCE, Hyderabad - 1988 (38) E.L.T. 566 relating to assembling of parts of weigh bridge. In Mittal Engineering case, the Supreme Court was requested to follow Narne Tulaman Manufacturers case which it refused to follow on the ground that a decision cannot be relied upon in support of a proposition that it did not decide. Can we say that the facts in the Mittal Engineering case and in the instant case are identical. The answer in our view is to be only in the negative. The angles etc. are sold as well used by the assessee in the false ceiling contracts. The facts of this case cannot be equated with assembly, erection and attachment by foundation which was happening in Mittal Engg. Works case. Hence, that case is not applicable to the facts of this case as in both the cases activities of the parties are different. 13. Last argument of Shri Habbu is that in any case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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