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TMI Blog2003 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... ishankar, learned Advocate, submitted that the Appellants fabricate Fan shaped switches, tongue rails and stock rails (out of which Switch Expansion Joints are fabricated at site) and Check Rails out of rails supplied free of cost by the Railways; that SEJs do not come into being at the factory of the Appellants at all since they are capable of coming into existence as SEJs only at the site, when they are welded to the ground; that they clear only tongue and stock rails from their factory; that the production of tongue rails and stock rails merely involved bending of rail lengths at both ends; that such tongue rails and stock rails, when fastened to the ground at the rail site with the requisite accessories, constitute a SEJ; that it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by M/s. J.S. Industries (P) Ltd. to make check Rails, do not amount to manufacture as rails remain rails and no distinct product emerges. 4. The learned Advocate finally submitted that the learned Commissioner has not given any findings in the impugned Order in respect of Fittings Fasteners which are captively consumed by them and their value is included in the value of the Fan Shaped Switches; that Fan shaped switches are not exigible to excise duty as the rails continue to essentially remain rails even after their processing; that there is no substantial change either in name or character; that the similar views were expressed by the Department in reply to Audit and they cannot now take a different view. 5. Countering the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge the track by moving trains; that in Burn Standard Co. Ltd. v. Commissioner of Central Excise, Calcutta II - 2000 (119) E.L.T. 650 (Tribunal) = 1999 (34) RLT 748 (T), the fabrication of switches was held to be amounting to manufacture; that in Cemcon Tracks Industries case also, the fan shaped switches excisiability was not in question; that Shri Rajiv Agarwal, Partner, in his statement dated 29-5-99 has stated that only for transport purpose components of fan type switches were removed from the factory. The learned Senior Departmental Representative also relied upon the decision in the case of Dynamic Engineers v. Commissioner of Central Excise Jaipur, 2001 (128) E.L.T. 101 (T) wherein it has been held that Glued Insulated Rail Joints, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied free of cost by Railways to the Appellants is includible in the assessable value of the goods manufactured. This was the view of the Supreme Court in Burn Standard Co. Ltd. and Texmaco cases. The Court has held that cost of materials and components supplied free by the Railways is to be included in the assessable value of the final products. Thus the cost of the materials supplied free by Railways to the Appellants and which are used in the manufacture of excisable goods manufactured by them is to be included in the assessable value of the excisable goods. 7. Regarding Switch Expansion Joints, it has been contended by the Appellants that the same comes into existence only at the site and they are only clearing tongue rails and sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses undertaken by them are drilling and machining of rails as per drawing and specifications; after completing the machining the grinding is done on machined portion. It is thus apparent that rails undergo a change and a new and different commercial product known as Check Rails come into being. The learned Commissioner has given his findings in the impugned Order that rails are not simple rails as asserted by the party. They have been cut into different and specified lengths as per requirement of the specified places, holes have been made and worked upon otherwise also. We do not find any reason to differ with these findings of the Commissioner. H.S.N. as well as Central Excise Tariff mention Check Rails in Heading 73.02 separately from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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