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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 ..... s 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 duty-paid MS tubes from its manufacturers. The said MS tubes are classified under Heading 73.06 of the Schedule to the Central Excise and Tariff Act, 1985 (for short, "1985 Act"). After receiving MS tube from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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 supplied) 8. At the outset we may clarify that our judgment in this case is based on interpretation of the word "manufacture" as defined in Section 2(f) of 1944 Act. With the introduction of 1985 Act, the definition of "manufacture" has been substituted to include "any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 shape of the iron pipe or tube. There are various types of Metal Forming Operations. These Operations are performed on Presse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 to the said Dictionary the word "profile" refers to an outl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; However, we make it clear that we express no opinion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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