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TMI Blog1998 (4) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the issue of writ of declaration that Heading 73.08 of the Central Excise Tariff Act, 1985 is ultra vires and unconstitutional offending Entry 84 List I of the Seventh Schedule to the Constitution of India and void and unenforceable insofar as the petitioner is concerned. 3. W.P. No. 15242 of 1988 is for the issue of writ of mandamus directing the respondents to forbear from levying duty of excise under the provisions of the Central Excises and Salt Act, 1944, read with Heading 7308.90 of the Central Excise Tariff Act, 1985 or in any manner invoking the provisions of the said Act including obtaining direction and following attendant formalities on the structural fabrication work carried out by the petitioner at the project sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities had been accepted by the respondents as they had not been challenged by them. 6. After the coming into force of the Central Excise Tariff Act, 1985, schedule to the Central [Excises] and Salt Act, 1944, was deleted and the goods were independently classified by a separate Act. Subsequent thereto, revenue started taking a stand that the work carried out by the petitioners were appropriately covered under Heading 7308 of Chapter 73 of the Tariff Act. The Superintendent of Central Excise had also clarified that the structurals were not goods and did not attract excise duty. After such finding, the petitioners discontinued the excise formalities. However, the authorities had started taking a view that the petitioners we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commerce Industries Co. P. Ltd., the writ petitioner in W.P. No. 15241 of 1988, who manufactured some items like purlins, gussets, stanchions, M/s. Base Plates etc., and were clearing these items without payment of duty on the plea that they were only semi-fabricated items made out of iron and steel products by cutting them and therefore, not excisable. An order was passed demanding duty for all clearances of such articles under Section 11A of the Central Excises and Salt Act, 1944. It was held that it would apply to clearances on or after the date of issue of show cause notice. Aggrieved, M/s. Beehive Foundry Engineering Works went on appeal. The Collector (Appeals), Madras, in Order-in-Appeal No. 176/86 (M), dated 1-7-1986 (A. No. 3/86 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition had also filed necessary classification list for the same under Chapter sub-heading No. 7308.90 "under protest". 10. Since the decision of the Tribunal regarding excisability of the structurals was awaited, raising the said matter in a Court of law was premature. In a similar placed case filed by M/s. Siemens India Ltd., in W.A. No. 566 of 1989 this Court held contrary to the stand of the petitioner in W.P. No. 15241 of 1988, no concrete evidence for the non-excisability of the product had been adduced. Inasmuch as the case put forward by the petitioner was coming within the ambit of Chapter sub-heading No. 7308.90, under the Central Excise Tariff Act, 1985, there could be no doubt as to the excisability of these items and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and also other similarly placed claimants. The statement is recorded. 12. The learned Counsel for the writ petitioners Mr. Venkataraman referred to a number of authorities on the subject and in particular, Moti Laminates Pvt. Ltd. v. Collector of Central Excise, Ahmedabad [1995 (76) E.L.T. 241 (S.C.)], Kinetic Honda Motors Ltd. v. Union of India [1996 (81) E.L.T. 48 (M.P.)], and Union of India v. Bajaj Tempo Ltd. [1995 (80) E.L.T. 774 (M.P.)]. The learned Counsel also brought to the notice of this Court certain decisions by the Tribunal, namely, Customs, Excise and Gold (Control) Appellate Tribunal. 13. It is not necessary to refer to all those decisions, Suffice to refer to the judgment of the Supreme Court, namely, Moti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, held that the process of drilling, cutting and welding of duty paid iron and steel products for construction of shed, does not amount to `manufacture' and the article so used were not liable to be classified as `goods' within the meaning of Section 3 of Central Excises and Salt Act, 1944 and not chargeable to duty. 15. Again, in Union of India v. Bajaj Tempo Ltd. [1985 (80) E.L.T. 774 (M.P.)], it was held by the Indore Bench of the Madhya Pradesh High Court that fabrication and construction of shed by subjecting the plates, channels and angles to the process of cutting, drilling and welding did not amount to manufacture of excisable products and such sheds being embedded to earth could not be taken out of the factory and hence n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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