JUDGMENT
S.L. Peeran
1. In all the above listed matters, a common question of law and fact is involved and hence these appeals are taken up together for disposal as per law.
2. In the first Appeal, the Revenue is aggrieved with the order-in-appeal passed by the Commissioner (Appeals) Chennai by OIA No. 211/84 (M) dated 18.12.94 holding that a activity of fabrication of steel structurals by the assessee PSU to M/s. VSPL, Vizag does not bring into existence new goods and they are not excisable and dutiable. Revenue is aggrieved with this finding and contends that the item brings into existence goods and therefore the order is required to be set aside and the Order-in-Original be confirmed. The matter was decided in assessee’s favour holding that the item is not goods and confirmed the Order-in-Appeal. Revenue was aggrieved with the order and the matter was taken up before the Apex Court and the Apex Court vide their order in Civil Appeal No. 155/2000 have remanded the matter for de novo consideration with a direction that the Tribunal shall hear the matter and decide the case with regard to excisability of the product.
3. As regards the other nine appeals, the Hon’ble Apex Court took up a batch of 100 appeals and have remanded the matters to the respective benches of the Tribunal to rehear and decide the issue of excisability in the light of its judgment rendered in CCE Jaipur v. MAN STRUCTURALS LTD., 2001 (13) ELT 401. That is how all the above matters are listed for consideration.
4. We have heard Shri N. Venkatraman, Shri Muthu Venkatraman and Shri G.P. Sastry, Ld. Counsels for the appellants. Ld. Counsel Shri G.P. Sastry submits that the assessee M/s. BHVP had taken up a contract from M/s. NALCO Ltd., while other nine assessees had entered into a contract with VSP for constructing Aluminium and Steel units respectively. The facts were that they were receiving plates, channels and angles. They were only carrying out a process of cutting, riveting and drilling. This do not change the nature of the goods and its characteristic. Neither, it acquired a new name. They continued to remain in the same form and it was recognised in the trade as such. Therefore, there was no evidence of marketability produced by the Revenue and such burden has not been discharged for its classification under various headings of the CETA. It is stated that this is the question of fact and without evidence having been produced by the revenue, revenue is not deemed to have discharged their burden regarding excisability and duty liability. It is stated that the Tribunal took up the case of L & T v. CCE & Customs, Bhubaneshwar, CCE Bombay & CCE Raipur which was also remanded by a common order by this Bench vide final order No. 1506 to 1509/01 dated 4.9.01. In the cited case, the Tribunal have opined that the issue is required to be reconsidered by the original authorities as it required examination of facts and more particularly, the evidence which is required to be adduced by the revenue regarding marketability and dutiability and various other pleas raised by the appellants, particularly, eligibility of modvat credit, duty to be considered as cum duty benefit and benefit be granted and various other deductions and valuation aspect. They also contended that they held bonafide belief that the item was not covered under the Tariff Act. This plea has been accepted by the Tribunal in several appeals and held the demands to be barred by time. On such case is BRAITHWATE & CO., 2000 (116) ELT 487 and they have also relied on the several the Apex Court judgments to plead that the demands time barred and that penalty was not imposable. Taking into consideration the pleas made by both the sides, the Tribunal vide above final order remanded the matter to the original authority for de novo consideration.
5. Ld. SDR points out that the fact that items are mentioned in the tariff discharges the revenue’s burden regarding marketability. The burden has shifted on the assessee to show that they are not goods. He further contends that appellants had not taken out licence and had not informed the department besides not having declared under Modvat rules. Therefore, the larger period was invokable besides denial of modvat credit. The other benefits claimed is not available as they have not maintained and produced the invoices and records to grant benefit of cum duty price etc. He submits that as the items are also mentioned in the tariff heading, they are required to be treated as goods. He seeks for confirmation of the orders impugned as well as confirmation order passed by the Commissioner in so far as the Revenue appeal is concerned.
6. In counter Ld. Counsels submit that the Constitutional Bench of 5 Hon’ble Judges in the case of MAN STRUCTURALS LTD have given clear direction that the matter requires to be adjudicated in the light of the Apex Court judgment rendered in Modi LAMINATES PVT. LTD and Ors. v. CCE, 1995 (76) ELT 241 (SC) and that of UOI v.DELHI CLOTH AND GENERAL MILLS LTD and Anr., 1997 (91) ELT 23 (SC). Therefore, the Counsel submits that the mere fact of the item being mentioned in the tariff will not ipsofacto make the item as marketable one and to be considered as goods. He submits that the test of marketability is required to be applied in the light of the Apex Court Judgment. They further submits that as it required consideration of facts, therefore the matter is required to be remanded for de novo consideration. Ld. Counsel further relied on the judgment of ARUNA INDUSTRIES 1986 (25) ELT 580 wherein these items have been considered as not goods.
7. Ld. SDR submits that the Apex Court took up hundreds of appeals on this issue only and therefore the citation of ARUNA INDUSTRIES relied upon is not relevant.
8. On a careful consideration of the submissions, we notice that the entire batch of hundreds of appeals above have been remanded alongwith the present appeals by the Apex Court in the case of CCE Jaipur v. MAN STRUCTURALS LTD., giving directions in para 4 & 6 as follows:-
“4. It was for the Tribunal to determine, as a fact, whether the structurals that the Department sought to make exigible to excise duty in the various appeals before it were new, identifiable goods which were produced as a result of manufacture or processes and which were marketable. Depending upon its conclusion on these aspects in each of the appeals before it, it was the Tribunal to determine whether or not the goods in question in each of these appeals were exigible to excise duty.
5. In the judgment and order of the Tribunal that is under challenge the Tribunal has failed to consider the facts of even a single of the appeals before it. It has proceeded simply upon the basis that structurals are not exigible to excise duty. It was failed to appreciate that there is a tariff entry which makes structurals exigible to excise duty and that they are so exigible, provided that they are new identifiable goods that are the result of manufacture or processed and they are marketable.
6. It, thus, becomes necessary to set aside the judgment and order of the Tribunal under challenge and remand the appeals to the Tribunal for being heard and disposed of afresh, bearing in mind what we have stated above. All contentions may be raised before the Tribunal by either party. Liberty is given to produce additional evidence.”
9. In terms of the Apex Court judgment, the Tribunal is required to consider the item to be goods or not on. In order appreciate this point, the Tribunal has to consider the evidence of marketability and also to consider as to whether the revenue has discharged their burden. Mere mention in the tariff heading, will not be sufficient to take the items to be goods. Till date revenue has not placed evidence regarding its marketability and process carried out by appellants resulting in new goods with separate name, characteristics and use. Therefore, the Tribunal in the case of L & T LTD by final order No. 1506 to 1509/01 dated 4.9.01 remanded the matter for de novo consideration as the facts of each case was required to be considered. The findings recorded by the Tribunal in paras 11 & 12 are reproduced herein below:-
“11. On a careful consideration of the submissions, we notice that the Constitutional Bench on this issue in respect of various items and has remanded the case for de novo consideration to reconsider Revenue’s pleas as submitted by Ld.DRs before us. The relevant portion of the judgment has already been extracted above.
12. We notice that in each of the case, there is a requirement for appreciation of facts. The entire facts with regard to item being goods or not; whether they are known in the market and whether they are in marketable stage and whether appellants held bonafide belief and they had no intention to evade duty are all facts which should be appreciated by the respective original authorities. We do not have all the material facts before us to give our finding. We have noted each of the items involved therein. We have taken into consideration the arguments by Ld. Sr. Counsel that they are not goods. The burden to establish that they are goods is on the Revenue. The Revenue has to produce evidence of marketability; the item being known in the market with specific name, characteristics and use. Besides, it is for the revenue to show that appellants had deliberate intention to evade duty in the matter. At this stage, Bench notes the arguments for Sr. Counsel that the assessees in the entire country were not paying duty and hundreds of appeals had been filed. This is a crucial point, on which the law is laid down by the Apex Court in the cited judgment by the Sr. Counsel is required to be examined. Such an examination can be done only by the original authority in the light of pleadings and evidence that would be produced by both sides in the matter. Therefore, we are not in a position to give our findings in any of the items as to whether they are goods or not. We are not in a position to even express our opinion with regard to the item ‘cable tray supports’. The photograph itself indicates that it is running into hundreds of mtrs and it is fixed on the columns. This aspect has to be examined by the original authority to whom all these matters are remanded for de novo consideration in the light of judgment of the Apex Court rendered in CCE Jaipur v. MAN STRUCTURALS LTD (supra) and the Tribunal ruling in the case of CCE v. SAE (India) LTD. Thus, the impugned orders are set aside and matters are remanded to the original authority for de novo consideration. The original authority shall put the assessees to notice about the evidence of marketability etc., so that they can counter it with rebuttal evidence. The appellants shall be heard before a judicious speaking order is passed.”
10. From the above paragraphs, it is clear that the matters requires reconsideration by the respective original authorities in the light of the evidence and the ratio of the Apex Court. For that reason, the impugned orders are set aside and the matter remanded to the original authority for de novo consideration. Both sides are entitled to produce evidence on all aspects of the matter. The original authority shall readjudicate the matter after granting full opportunity and after taking the evidence into consideration. The order shall be passed after taking into consideration in the light of various judgments of the Apex Court including the judgment of the Tribunal on limitation as well as all other claims made by the appellants. Appeals are allowed by way of remand.
(Pronounced & Dictated in Open Court)