9911796707
TMI Blog1999 (5) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. M/s. Continental Construction Co. Ltd. Appellant No. 2. 2. Shri A.N. Haksar, learned Sr. Advocate, submitted that M/s. Hindustan Construction Co. Ltd., appellants No. 1 are engaged in the business of construction work; that they were awarded work relating to construction of tunnel for Chamera Works; that activity of crushing of stones/rocks has been considered as manufacturing activity by the excise authorities. He further submitted that the Appellate Tribunal, in their own case, reported in 1997 (89) E.L.T. 123 (T), has held that the crushing of stones into small stones of size would constitute manufacture. He, however, contended that the Appellate Tribunal had not noticed the decision in the case of SAIL v. C.C.E., 1991 (54) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Senior Counsel also mentioned that the said decision was also not available to the Tribunal while deciding their earlier appeal. He also placed reliance on the decision of the Madras High Court in the case of State of Tamil Nadu v. O.P. Aliyar, 1992 (87) STC 339 (Mad.), wherein it was held that the process of obtaining of blue metal jelly by crushing stone boulders into smaller stones of varying sizes is not one of manufacture attracting levy of tax under Tamil Nadu General Sales Tax Act, 1959. The learned Sr. Counsel further submitted that the Appellants used to pick up boulders from riverbed; that some of the boulders were used as such if these were of required sizes; that as per the affidavit of Shri R.V. Datye, Chief Engineer, fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the decisions of Madras and Bombay High Courts were contrary to decision in Kher Stone s case which has been followed by the Tribunal in Hindustan Construction Co s case. He further emphasised that the Tribunal is consistently holding the view that crushing of limestone amounts to manufacture. He relied upon the decision in the case of Raymond Cement Works - 1995 (76) E.L.T. 340 (T) and Eastern Minerals v. C.C.E., Indore - 1994 (70) E.L.T. 301 (T). He also mentioned that it is not clear from the orders passed by the adjudicating authority as to whether the duty was demanded on the entire quantity; that this argument is not applicable in respect of Appellant No. 2. 5. In reply the learned Sr. Counsel relying upon the decision in Hyderab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Sales Tax Act whereas the decision of the Madhya Pradesh High Court in the case of S.N. Sunderson (Minerals) Ltd., supra, is under the Central Excise Act. The Hon ble High Court, while holding that the Note 2 of Chapter 25 does not by artificial extension of the definition of the word manufacture extend the process of crushing of limestone to be a manufacturing process, observed that the question whether a particular process is a manufacture or not has to be judged and determined having regard to the facts and circumstances of each case and having regard to the well known test laid down by the Supreme Court in Delhi Cloth General Mills case, 1977 (1) E.L.T. (J199), Empire Industries Ltd. case, 1985 (20) E.L.T. 179 (S.C.) and South ..... X X X X Extracts X X X X X X X X Extracts X X X X
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