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TMI Blog2023 (5) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... inting etc. are done to make the pole marketable. It is the contention of the Appellants that they used mild steel Black Pipes and MS plates, which are major raw materials. The Ld.Commissioner has wrongly distinguished the judgement of the Hon ble Supreme Court in the case of M/S. PRACHI INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [ 2008 (3) TMI 25 - SUPREME COURT] relied upon by the Appellant. The facts of the present case are squarely covered by the above-mentioned decision of the Hon ble Supreme Court - the Ld.Commissioner has not only misunderstood the judgement of the Hon ble Supreme Court, but has also wrongly interpreted the ratio laid down by the Hon ble Supreme Court in the impugned order. There is no dispute t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No.32/99-CE dated 08.07.1999 as amended by way of refund of the duty paid through PLA after utilization of CENVAT Credit availed on the inputs. Show Cause Notice dated 29.05.2009 was issued preceded by investigation and recording of statement of Shri P.K.Goel, General Manager (Finance) of the Appellant company wherein he, inter-alia, stated that MS Black Pipes and MS Plates are their major raw materials. First they cut the pipe into required sizes in length and then they swage this cut pipes to fit into the next lower size of pipes. After swaging, welding of these pipes is done to hold these swaged at required plates. The plate is fixed at the bottom by the process of welding, and thereafter the painting etc. are done to make the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of swaging is necessary in the process of manufacture of Steel Tubular Poles. Swaging is the process by which the poles are manufactured in their factory. After process of swaging, welding is also necessary for manufacture of Steel Tubular poles. The Appellants have referred to the decision of the Hon ble Supreme Court in the case of Prachi Industries v. CCE, Chandigarh reported as 2008 (225) ELT 16 (S.C.), wherein the Hon ble Supreme Court held that when swaging is undertaken by swaging machine on duty paid MS tubes/MS pipes, imparting of folds on to the plain pipes through the swaging machine containing dies of different shapes and sizes is the other function of that machine. It is the die which gives accurate shape to the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are squarely covered by the above-mentioned decision of the Hon ble Supreme Court. The relevant paragraphs are reproduced.:- 15. Applying the above tests in the context of Section 2(f) of the 1944 Act, we are of the view that in the present case the rotary swaging machine with different dies therein imparts a change of lasting character to the plane pipe or tube by use of dies. That, work piece having a distinguishable identity comes into being depending on the shape of the die and the punch used. On facts, we find that after undergoing the swaging process a workpiece of a different shape and user emerges and, therefore, in our view, the process of swaging amounts to manufacture under Section 2(f). 16. Before concluding, we may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that even after welding there is no change in the basic identity or original character of MS welded pipes so as to make the same a marketable product. It is important to note that in that matter the original item was MS welded pipes. It was a case of connecting duty-paid pipes of different diameters. It was not the case where folds were to be imparted on to the plane MS pipes which is the case herein. Further, in Hindustan Poles (supra) swaging machines were used. However, various functions are performed by swaging machines, welding is one of them. In numerous cases swaging machines are used by which the sizes of two pipes are welded through that machine. However, welding is not the only function of swaging machine. Imparting of f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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