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TMI Blog2025 (4) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994 under the categories of 'works contract', 'interior decorator' and 'Goods Transport Agency' services. Alleging that the activity carried out by the appellant including installation of false ceiling are falling under the category of manufacture, proceedings were initiated for the period from April 2009 to December 2013 and Adjudication Authority as per the impugned order dated 07.11.2013 confirmed the demand of duty amounting t0 Rs. 74,22,223/- and other Adjudication levies. The Appellant challenged the said order before this Tribunal and this Tribunal set aside the Order-in-Original and remanded the mater for De- novo Adjudication vide Final Order No. 20990-20991/2014 dated 16.06.2014 and directed the appellant to deposit Rs. 2,00,000/- before the Adjudicating Authority. In the meantime for the subsequent period, respondent had issued 2(two) separate show cause notices dated 06.12.2013 and 10.04.2014. Pursuant to remand by this Tribunal in respect of first show cause notice, the Adjudicating Authority clubbed all the 3(three) Show cause notices and proceeded to adjudicate together. During the said common adjudication proceedings, the appellant pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luminium Sections of 12/14/16 ft length cut into required size as per site-plan, and powder coated and fitted with clamps. These cut and powder coated Aluminium Sections are sent to site. At site, cut and powder coated Aluminium Sections received from factory are fitted/mounted to frames by using bought out items like Glass Sheets, screws, silicon, etc are installed as per site-plan. Appellant procures required raw materials ie, Aluminium Track Sections in their factory. 3. Installation of Aluminium windows, ventilators, door frames, louvers, etc At factory, Aluminium Track Sections of 12/14/16 ft length and Glass Sheets are cut into required size as per site-plan, and powder coated and fitted with clamps. These cut and powder coated Aluminium Track Sections and Cut- Glass Sheets are sent to site. At site, cut and powder coated Aluminium Track Sections and Cut- Glass with other bought-out items like silicon, MS Clamps, wood screws, bolt/nut, etc are received at site. These items are assembled as per site-plan. 4. &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/ components that have gone into its production. Further, such resultant goods should be specified in the Central Excise Tariff as excisable goods besides being marketable ie. they can be taken to the market and sold (even if they are not actually sold). The goods should not be immovable. (ii) Where processing of inputs results in a new product with a distinct commercial name, identity and use (prior to such product being assimilated in a structure which would render them as a part of immovable property), excise duty would be chargeable on such goods immediately upon their change of identity and prior to their assimilation in the structure or other immovable property. (iii) Where change of identity takes place in the course of construction or erection of a structure which is an immovable property, then there would be no manufacture of "goods" involved and no levy of excise duty." 6. Learned Counsel also draws our attention to the Circular No. 25/89 dated 19.04.1989; "2. The matter has been examined. It is observed that in view of entry No. 84, List I of the Seventh Schedule to the Constitution of India, duty of excise could be levied only on 'goods' as defined by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (108) ELT A58 (SC). h. Triveni Engineering & Inds Ltd Vs. CCE, 2000 (120) ELT 273 (SC). i. Dodsal Pvt Ltd Vs. CCE, 2006 (193) ELT 518 (Tri-Mum.) maintained by Honorable Supreme Court as reported in 2015 (320) ELT A36 (SC). j. Petron Engg. & Construction Ltd Vs. CCE, 2009 (243) ELT 272 (Tri-Bang.). k. CCE Vs. Hindustan Steel Works Construction Ltd, 2017 (358) ELT 516 (Tri-Hyd.) l. Ajit India Pvt Ltd Vs. CCE, 1985 (19) ELT 541 (Tri.) affirmed by Honorable Supreme Court in CCE Vs. Ajit India Pvt Ltd, 2000 (119) ELT 274 (SC). m. R.D.Plast Vs. CCE, 2017 (357) ELT 881 (Tri-Del.). n. CCE Vs. Telco Ltd, 2006 (202) ELT 812 (Tri-Mum.). o. Voltas Ltd Vs. CCE, 2011 (270) ELT 541 (Tri-Mum.). p. CCE Vs. ETA Engg. (P) Ltd, 2008 (224) ELT 447 (Tri-Bang.). q. CCE Vs. Crystal Corporation, 2017 (349) ELT 745 (Tri-Del.) r. Al Karma Vs. CCE, 2019 (2) TMI 252 - CESTAT Chennai. s. Mccoy Architectural Systems Pvt Ltd Vs. CCE, 2018-TIOL- 675-CESTAT-MUM. t. Aluplex India Pvt Ltd Vs. CCE, 2006 (206) ELT 960 (Tri- Mum.). u. CCE Vs. Ahluwalia Contracts India Ltd, 2016 (341) ELT 343 (Tri-Del.) v. Ajit India Pvt Ltd Vs. CCE, 2004-TIOL-759-CESTAT-MUM. w. AGV Alfab Ltd Vs. CCE, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable. The requirement of the goods being brought to the market for being bought and sold has become known as the test of marketability which has been reiterated by this Court in Collector of Central Excise Vs. Ambalal Sarabhai Enterprises, 1989 (43) E.LT. 214. The Court has held in Union Carbide India Ltd. Vs. Union of India & Ors. - 1986 (24) E.L.T. 169 (SC) = (1986) 2 SCC 547 that even if a goods was capable of being brought to market, it would satisfy the test of marketability. The basic test, therefore, of levying duty under the Act is two fold. One, that any article must be a goods and second, that it should be marketable or capable of being brought to market. Goods which are attached to the earth and thus become immoveable do not satisfy the test of being goods within the meaning of the Act nor it can be said to be capable of being brought to the market for being bought and sold. Therefore, both the tests, as explained by this Court, were not satisfied in the case of appellant as the tube mill or welding head having been erected and installed in the premises and embedded to earth they ceased to be goods within meaning of Section 3 of the Act." 9. Learned Counsel also draws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .J 336, wherein it has been held that manufacture involves bringing into existence a new substance and it does not mean merely producing same change in substance. Manufacture implies change but every change is not manufacture and yet every change of article is the result of the treatment labour and manipulation. But something more is necessary and there must be transformation and a new and different article must emerge having a distinct name, character and use. About the goods they held "these definitions make it clear that to become goods an article must be something which can ordinarily come to the market to be bought and sold". It is true that the appellants have in some cases sold doors and window frames and door frames. However, we are not now considering such window frames, door frames etc. but pieces of aluminium sections. From the evidence produced by the Department, it is not possible to make out whether these pieces have acquired any distinct name, character or use i.e. whether they are "goods". We might observe that while in order-in-appeal No. 304/83 dated 5-9-1983, the learned Collector of Central Excise (A), Madras in para 10 of his order generally observes that manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in error in appreciating the factual and legal issue involved in the present dispute. It is not clear as to how an aluminium section cut to size and drilled/bent wherever required will become a distinct marketable product from the input used. Further, it is clear that such drilling and bending is not carried out in respect of all aluminium sections cut to required size by the appellant. Such drilling and bending is also carried out at site of the customers depending upon the requirement of structure to be installed in the premises along with other civil work. In such situation, it is necessary to have a clear recording on the facts as to what type of new identifiable product emerges from aluminium sections brought in by the main appellant. The Original Authority found the product cleared by the appellant to be classified under Heading 7610 as aluminium structures. He held that the aluminium sections have been prepared for use in the structure are not the same goods as aluminium sections brought in. We note the aluminium section remained as aluminium section as per the Original Authority's own finding. Further, the reliance placed on the decision of the Tribunal in Mahindra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed. We hold that items which are ordinarily immovable or which ordinarily cannot be removed without cannibalizing e.g. storage units, running counters, overhead unit, rear and side unit, wall unit, pantry unit, kitchen unit and other items which are ordinarily immovable or cannot be removed without cannibalizing are not furniture. However, items like tables, desks, chairs etc. are furniture and hence excisable." 13. Learned Authorized Representative (AR) for the Revenue reiterated the finding in the impugned order and submits that the Adjudication Authority has considered the issue in detail and only thereafter confirmed the demand of duty. Activity that has been undertaken by the appellant only at the factory premises is considered as manufacturing and same cannot be held as unsustainable. 14. As regarding CENVAT credit, in rejoinder Learned Counsel for the appellant draws our attention to the Chartered Accountant (CA) Certificate and submits that even if the demand is sustainable, appellant is eligible for Cenvat credit. Learned Counsel further draws our attention to the CA Certificate and submits that even if it is held that the furniture are subject to excise duty, the am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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