ORDER
S.L. Peeran, Member (J)
1. In both these.appeals a common question of law and facts are involved and hence they are taken up together for disposal as per law.
2. Appeal No. E/2105 arises from Order-in-Original No. 5/90, dated 27-2-1990 passed by the Additional Collector of Central Excise & Customs, Trichy confirming duty of Rs. 69,431.67 under Rule 9(2) of the C.E. Rules, 1944 read with Section 11A of the C.E. Act, 1944. He has also imposed a penalty of Rs 1,000/- on the appellants under Rule 173Q of the C.E. Rules, 1944.
3. The question that arises for consideration in this appeal is as to whether the process of cutting, drilling and welding of the MS steel materials to make pre-fabricated buildings amounts to manufacture under Section 2(f) of the C.E. Act, 1944 and as to whether they are classifiable under chapter Heading 9406.00. The appellants had taken the plea that the process of cutting, drilling and fixing of these materials does not amount to manufacture and in support of their plea relied upon the following cases :
(a) Aruna Industries Visakhapatnam v. C.C.E. as reported in 1986 (25) E.L.T. 580.
(b) SAIL v. C.C.E. as reported in 1988 (36) E.L.T. 316.
(c) SAE (India) Ltd. v. C.C.E. as reported in 1988 (36) E.L.T. 613.
In the impugned order the adjudicating authority has held that he does not want to enter into a legal battle to consider as to whether cutting, drilling and welding of MS steel materials in the factory of the appellants to make them pre-fabricated buildings on contract basis would amount to manufacture under Section 2(f) of the Act. He has further proceeded to hold that the items are classifiable under Chapter 9406.00 merely on the basis of the tariff heading.
13. Shri P.C. Anand, Chartered Accountant appearing for the appellants submitted that the Additional Collector ought to have answered these questions by applying the ratio of the judgments cited. He further submitted that the issue was taken up in appeal before the Tribunal in other cases pertaining to the appellants themselves as reported in 1996 (88) E.L.T. 407 (Tribunal) and the Tribunal has held that cutting and punching of holes in angles and channels would not amount to manufacture as no new commodity emerges. He further submitted that the issue was re-examined in a number of cases as reported in [1999 (107) E.L.T. 337 (T) -1999 (31) RLT 5] in the case of Eicon Engineering Co. Ltd. v. C.C.E., Chandigarh and Ors. and it was held by the Tribunal that the various items mentioned therein i.e. Trestles, Structures etc. used for steel structures such as columns, does not amount to manufacture even though these items are merely mentioned in the tariff heading 73.08 of the CET. He submitted that the Additional Collector has demanded duty merely because the items in question find a mention under Heading 94.06 of the CET. He further submitted that the question of invoking the longer period of limitation also does not arise in this case and the demand is also barred by limitation.
4. Appeal No. E/4366/90-B/Md, arises from Order-in-Appeal No. 140/89 (CBE), dated 17-10-1989 passed by the Collector of Central Excise (Appeals), Madras, wherein the Collector (Appeals) has confirmed the order of the Original authority that fabrication of structures would amount to manufacture and would attract duty liability under sub-heading 7308.90 of the CET.
5. The learned C.A. submitted that the issue has been decided in the appellants own case cited supra.
6. The learned DR reiterates the view taken by the authorities below.
7. On consideration of the submissions made we notice that the Tribunal has already decided the issue in appellants’ own case [1996 (88) E.L.T. 407] by holding that the process of cutting, and punching of holes in angles and channels would not amount to manufacture as no new commodity emerges. The Tribunal in the case of Eicon Engineering Co. Ltd. (supra) has held that Trestles, structures used for construction of power plant, steel structures such as columns etc. are not different from duty paid goods, and are not excisable merely because some of these items find mention under Heading 73.08 of the CET. Therefore, we notice that the issue is decided in favour of the appellants. Therefore, following the ratio of the decisions cited supra, the impugned orders are set aside and the appeals allowed with consequential relief if any as per law.