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TMI Blog1997 (4) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were not required to pay duty. However, the authorities found later that the appellants had fabricated the items in question and cleared the same without payment of duty. A show cause notice was, therefore, issued to the appellants and it was alleged in the show cause notice that the appellants abstained from complying with the Central Excise requirements and held that the manufacture and clearance of the same without payment of duty with the intention to evade the duty. A longer period of limitation in terms of Section 11A was invoked for reason the demand for the period 1-12-1988 to 19-3-1990. 2. The learned lower authority has held that the goods were classifiable under Tariff Heading 7308.90 as this heading covered structures and parts thereof and the goods fabricated by the appellants were further used for the fabrication of the sheds. Amongst the various pleas taken by the appellants, the appellants also pleaded that the longer period of limitation could not be invoked against them. 3. The learned Senior Advocate for the appellants Shri Natarajan has pleaded that the Tribunal in a number of decisions has held merely cutting, drilling etc. of duty paid angles etc. would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by subjecting, to further processing articles like cement, sand and tiles in the case of `flooring and cement, sand bricks in the case of `wall . Can it be said that `floorings and `walls being `parts of a building are excisable ? Undoubtedly, the definitions of these `items referred to above and the photographs which were produced by the Petitioners would show that these `items are only portions or `sections of a structure. The other test is : whether they could be separately known as commodities separately bought and sold? The answer could be only in the negative. Thus, none of these items, in our view, satisfy the twin tests and are, therefore, not exigible to excise duty. 4. He also in this connection referred us to the decision of the Single Member Bench of the Madhya Pradesh High Court in the case of Kinetic Honda Motors reported in 1996 (81) E.L.T. 48 (M.P.) = 1996 (66) ECR 460. He pointed out in that case the structures were made out of duty paid iron and steel products like sheets, angles and channels is for the construction of the shed and these items were subjected to the process of drilling, cutting and welding and after this activity was carried out these are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sakhapatnam and, therefore, the question of invocation of provisions of Notification 46/81-C.E. did not arise. He records in the same paragraph that the purlins, etc. were removed as semi-finished goods. It is clear to me that the goods went after cutting, sizing, drilling, that is to say, as angles, channels, sheets etc. The shapes and conditions in which they came before the job work and the ones which they acquired after the job work as a result of the treatment were the same but an angle went as an angle, though a shorter one perhaps; a channel went as a channel, though with holes in it; and a sheet went bent or cut; but you could still see the angle, the channel and the sheet unmistakably in the so-called semi-finished goods, just as you can see them equally unmistakably and clearly when they become finished goods. Neither of the two learned adjudicators pin point the precise time when they achieve finished goods status, but I am certain they have not seen the purlins, trusses, rafters etc. Had they gone to the site and seen the trusses, purlins, rafters etc., in the structure, they would have seen the original steel products, angles, rounds, channels etc. etc. but fitted in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no attempt to evade the duty. The Board s order does not help the appellants. 10. As to the Certificate given by Bokaro Steel Plant, we do not see how the certificate helps the appellants. Whether or not there is manufacture and goods came into existence is mainly a legal question to be decided by statutory authorities and opinion on the point given by an officer of Bokaro Steel Plant is not relevant for decision of the question. We do not attach any importance to this certificate. 11. Sh. V. Lakshmi Kumaran, learned Sr. Deptt. Representative argued that in determining the value of the job work done by the appellants, not only the value of the job work but also the value of the raw material which has gone into the same should be taken into consideration. Thus calculated the value of clearances made by the appellants would be far in excess of the figures given by the appellants. We decline to deal with this argument because this question was not raised at any earlier time either in the Show Cause Notice or before the Collector of Central Excise, Patna, who determined the appellants clearances on the basis of job work value. In the view we take it is not necessary to deal with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly held the manner in which the purlins and trusses are formed this could not be held to be excisable. As it is, the Tribunal while in the case of Standard Industrial Engineering Co. reported in 1988 (38) E.L.T. 196 has held that cuts of angles, channels and sheets for use for the formation of the structures would not amount to manufacture. They have also considered that unless the goods which go by the name of trusses or purlins or a rafter are marketable as such, no duty could be charged. We have, however, a contrary decision in the case of Richardson and Cruddas v. CCE wherein relying upon the earlier decision of the Tribunal, the Tribunal has held that trusses, purlins, columns, beams etc., will be chargeable to duty as a new product came into existence having a different identity and use. We observe that the benefit of the judgment of the Hon ble Bombay High Court and that of Hon ble Madhya Pradesh High Court cited supra was not available when the decision in the case of Richardson and Cruddas was granted. Therefore, the majority of the decisions are in favour of the assessee so far as the levy of duty in respect of purlins etc. are concerned. In any case since all the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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