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TMI Blog2008 (3) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... "1944 Act") and are against Final Order No.3-7/2002-B dated 4.1.2002 in Appeal No.E/2042-2046/2001-B and Final Order No.120/04-B dated 19.1.04 in Appeal No.E/1558/03-B passed by CEGAT. By the impugned orders CEGAT has allowed appeals filed by the Revenue. By the impugned decision CEGAT has held that the process of swaging undertaken by the assessee on swaging machine on duty paid MS tubes falling under Heading 73.06 of the Schedule to the Central Excise and Tariff Act, 1985, amounts to "manufacture" within the meaning of Section 2(f) of the 1944 Act. 2. For the sake of convenience we reproduce hereinbelow facts mentioned in Civil Appeal Nos.3621-25 of 2002 (lead matter). 3. M/s. Prachi Industries is the small scale unit. It buys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iron 15% 7306.90 Other 15% 7. We also quote hereinbelow the distinction between "tubes and pipes" and "hollow profiles" as indicated in HSN, Vol.3, which reads as under: "Tubes and pipes Concentric hollow products, of uniform cross-section with only one enclosed void along their whole length, having their inner and outer surfaces of the same form. Still tubes are mainly of circular, oval, rectangular (including square) cross-sections but in addition may include equilateral triangular and other regular convex polygonal cross-sections". "Hollow profiles Hollow products not conforming to the above definition and mainly those not having their inner and outer surfaces of the same form." (emphasis s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e identity of the plane MS pipe or tube undergoes a change both in terms of form, shape and user. 9. According to Production Technology, Metal Forming is a manufacturing process by which the size or shape of plane pipe or tube is changed by the application of forces that produce stress in the part of tube or pipe which is greater than the yield strength and less than the fracture strength of the material. The applied forces may be compressive, bending, sharing or a combination of all. In Metal Forming the sheet metal is strained beyond its yield point so that it takes a permanent new shape which is retained for all times. Metal Forming is one of the most important of the manufacturing processes. It is the fastest way to change the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is applied to a number of Metal Forming Operations. Production Swaging Operations are commonly performed on rotary swaging machines. Swaging has proved to be an economical-production method for forming shapes confined to a portion of the total length of a given pipe or tube, by tapering, pointing, reducing or sizing. Swaging process is also used for joining and fastening operations. It is also used in assembling two or more components by joining a bushing to a shaft, swaging of rings onto wire for use as electrical connectors, and for attaching fittings to tubes. 13. According to Dictionary of Technical Terms by F.S. Crispin, the word "swage" is defined to mean a form of die used as an aid in forming forged work. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that MS plane pipe/tube can carry water to the overhead tank whereas the workpiece produced in the present case is useful as a decorative item or as an item which provides a strong grip in the case of auto-rickshaw. Therefore, in our view a distinguishable identity is acquired of a lasting character imparted to a plane MS pipe/tube by use of dies and presses. 17. In the case of Bharat Forge Press Industries (P) Ltd. V. Collector of Central Excise 1990 (45) E.L.T. 525 (SC), this Court held that a mere change in length, size or shape does not bring into existence a new product and the same is not dutiable. Merely because the good(s) after processing becomes different commercial commodity or having a distinct name, would not resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the entitlement of the assessee in that regard. However, our order will not preclude the assessee from making the claim for such entitlement in accordance with law. 20. Before concluding we may clarify that the judgment of this Court in case of Hindustan Poles Corpn. V. Commissioner of Central Excise, Calcutta - 2006 (4) SCC 85 has no application to the facts of the present case. In the case of Hindustan Poles (supra) the question which arose for determination before this Court was : whether joining of duty-paid pipes of different diameters by the assessee by welding would amount to manufacture. It was held that even after welding there is no change in the basic identity or original character of MS welded pipes so as to make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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