{"id":15411,"date":"2000-08-08T00:00:00","date_gmt":"2000-08-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/triveni-engineering-industries-vs-commissioner-of-central-excise-on-8-august-2000"},"modified":"2018-03-18T02:47:28","modified_gmt":"2018-03-17T21:17:28","slug":"triveni-engineering-industries-vs-commissioner-of-central-excise-on-8-august-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/triveni-engineering-industries-vs-commissioner-of-central-excise-on-8-august-2000","title":{"rendered":"Triveni Engineering & Industries … vs Commissioner Of Central Excise & … on 8 August, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Triveni Engineering & Industries … vs Commissioner Of Central Excise & … on 8 August, 2000<\/div>\n
Author: S S Quadri<\/div>\n
Bench: Syed Shah Quardri, J., Shivaraj V. Patil, J.<\/div>\n
           PETITIONER:\nTRIVENI ENGINEERING & INDUSTRIES LTD.  & ANR.\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER OF CENTRAL EXCISE & ANR.\n\nDATE OF JUDGMENT:\t08\/08\/2000\n\nBENCH:\nSyed Shah Mohammad Quardri, J. & Shivaraj V. Patil, J.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
SYED SHAH MOHAMMED QUADRI,J.\n<\/p>\n
L….I……….T…….T…….T…….T…….T…….T..J<\/p>\n
     These  statutory appeals arise from the common order of
\nthe  Customs, Excise and Gold (Control) Appellate  Tribunal,
\nNew  Delhi (for short the CEGAT) in Appeal Nos.E\/1759\/95-A
\nand E\/5555\/92-A dated June 20, 1996.  The appellants are the
\nassessees  under  the Central Excise Act, 1944\t(for  short,
\nthe  Act).  The facts giving rise to these appeals are not
\nin  dispute.  The appellants deal in turbo alternators which
\nhave two components :  (i) steam turbine;  and (ii) complete
\nalternator   (also  called  Generator).\t   Of  them,   the
\nappellants  manufacture steam turbine in their factories  at
\nAllahabad  and\tBangalore where excise duty is paid on\tthem
\nunder the Act.\tThey purchase duty paid complete alternators
\nwhich  are  delivered at the site of the customer.   On\t the
\nground\tthat the appellants failed to declare manufacture of
\nturbo alternators, show cause notices were issued to them by
\nthe Collectors of Central Excise at Allahabad and Bangalore,
\ninter  alia,  stating that turbo alternators are  liable  to
\nexcise duty under Heading 85.02 of the Central Excise Tariff
\nAct,  1985  (for  short\t the  CET  Act).   The\tappellants
\nresisted the claim on the ground that (i) a turbo alternator
\nset  comes into existence on its being fixed permanently  on
\nthe  land  as  such  it\t is not an  excisable  good  but  an
\nimmovable  property  and (ii) by the combination  of  steam
\nturbine and alternator, a turbo alternator emerges at the
\nsite  of the customers which does not involve any process of
\nmanufacturing,\ttherefore,  they  are not liable  to  excise
\nduty.\tOn August 24, 1995, the Collector of Central Excise,
\nAllahabad  and on August 28, 1992, the Collector of  Central
\nExcise,\t Bangalore  confirmed the demand raised in the\tshow
\ncause  notices.\t The assessees filed two appeals against the
\norders\tof  the\t said Collectors before the CEGAT.   On\t the
\nquestion  of  levy of excise duty on turbo  alternator,\t the
\nCEGAT,\tby the impugned order dated June 20, 1996, held that
\nturbo\t alternators   were    liable\t to   excise   duty.
\nMr.V.Sridharan,\t learned  counsel  for the  appellants,\t has
\ncontended   that   (i)\tin   combining\tsteam  turbine\t and
\nalternator,  no manufacturing process is involved;  (ii) the
\nprocess\t consists  of  combining  and\tfixing\tof  the\t two
\ncomponents permanently on platform raised at the premises of
\nthe  customers\tand  thus what emerges is not goods  but  an
\nimmovable  property;   and  (iii) in view  of  the  Circular
\nNo.17\/89  dated\t April 21, 1989 issued by Central  Board  of
\nExcise\t& Customs, the case does not fall under Entry  85.02
\nof  the CET Act.  Mr.M.\t Gourishankar Murty, learned counsel
\nfor the respondents, in support of the order of the Tribunal
\nargued\tthat combining steam turbine and alternator amounted
\nto  manufacturing  process and that merely because  the\t two
\ncomponents   were  fixed  to   the  platform  for  efficient
\nfunctioning of a turbo alternator, it could not be said that
\nit  was\t an  immovable\tproperty.   In\tregard\tto  Circular
\nNo.17\/89 (F.No.207\/73\/88-CX.6), he submitted that it did not
\nrelate\tto  electric generator and it was not  issued  under
\nSection\t 37-B of the Act and in any event the point was\t not
\ntaken  before  the Tribunal.  The short question that  falls
\nfor consideration is whether excise duty can be imposed on a
\nturbo  alternator under the Act.  Section 3 of the Act which
\nis  the charging provision authorises levy and collection of
\nduties\tof excise on all excisable goods which are  produced
\nor  manufactured  in  India at the rates  mentioned  in\t the
\nSchedule  to the CET Act.  To attract exigibility of  excise
\nduty,  an article must satisfy the twin conditions of being:\n<\/p>\n
(i)  excisable goods;  and (ii) produced or manufactured  in
\nIndia.\t First,\t adverting to the second condition  is\tany
\nprocess of manufacture involved in bringing into existence a
\nturbo  alternator?   The process is noted by the CEGAT.\t  At
\nthe  site,  platform  is constructed in\t which\tpockets\t are
\nprovided.  The steam turbine from the assessees factory and
\nthe  alternator from other factories are transported to\t the
\nsite.\tThe  steam turbine is placed on the  platform  which
\nworks  as  the foundation and then, after levelling,  it  is
\nfastened  with\tfoundation bolts into the pocket.  So  also,
\nthe  alternator\t is placed and bolted to the  steam  turbine
\nthrough\t a  high  speed coupling between the  steam  turbine
\nouter-shaft  and  alternator  shaft  and  they\tare  aligned
\nproperly.   After ensuring that there is no movement of\t the
\nalternator  pedestal,  other  accessories are  installed  at
\ntheir respective places.  Having regard to this process, the
\nCEGAT  held,  and  in our view rightly, that  the  assessees
\nmanufactured turbo alternators.\t In State of Maharashtra vs.
\nThe  Central Provinces Manganese Ore Co.Ltd.<\/a>  (1977 (1)\t SCC\n<\/p>\n
643),  the  question was whether mixing of  manganese  ores,
\nobtained  from different mines, by a pre-determined mode  of
\nunloading  at  the  ports  resulted   in  manufacture  of  a
\nconglomerate  termed oriental mixture by the company.\tIt
\nwas  held  that\t the formation of the mixture  by  the\tmere
\nprocess\t of  unloading\tdid  not   involve  any\t process  of
\nmanufacture.   The  term oriental mixture was employed\tby
\nthe  company to name a particular type of conglomerate which
\nthe unloading at one place of various types of manganese ore
\nproduced.   What  is to be determined is whether  there\t has
\nbeen  manufacture  of  a new product which  has\t a  separate
\ncommercially current name in the market and that mere giving
\nof  a  new  name by the seller to what is  really  the\tsame
\nproduct\t is not the manufacture of a new product.  Nearer to
\nthe  issue  is the decision of this Court in  Narne  Tuleman
\nManufacturers Pvt.  Ltd.,Hyderabad vs.\tCollector of Central
\nExcise,\t Hyderabad<\/a> (1989 (1) SCC 172).\tThe assessee therein
\ncarried\t on the activity of assembling the three  components
\nof  the weighbridge and bringing into existence the complete
\nweighbridge  which has a distinctive name, character or use.
\nThere  also,  the assessee contended that out of  the  three
\ncomponents,  only one, indicator system of the machine,\t was
\nbeing  manufactured by it which had already suffered  excise
\nduty  and  the other components, which were also  duty\tpaid
\ncomponents,  were  purchased from others.  It was held\tthat
\nthe  activity of fitting and assembling the three components
\nresulted  in bringing into being complete weighbridge  which
\nhas  a\tdistinctive name, character or use.   Therefore,  it
\nwould  amount to manufacture of that product which is liable
\nto  excise  duty.   Thus,  where   an  activity\t results  in
\nemergence  of a new marketable commodity with a\t distinctive
\nname,  character  or  use, it cannot  but  be  manufacturing
\nprocess.   (See :  Union of India vs.  Delhi Cloth & General
\nMills<\/a>  [1963 Suppl.  (1) SCR 586]) In the instant case,\t the
\nappellants  were, according to specified designs,  combining
\nsteam  turbine\tand alternator by fixing them on a  platform
\nand  aligning  them.   As a result of this activity  of\t the
\nappellants,  a\tnew  product, turbo  alternator,  came\tinto
\nexistence  which  has a distinctive name and  use  different
\nfrom  its components.  Indeed, the Tribunal referred to\t the
\norders\tplaced for purchase of turbo alternator to point out
\nthat  a\t new commodity emerges.\t On these facts, we have  no
\nhesitation  in\tholding that the process involved in  fixing
\nsteam  turbine\tand alternator and in coupling and  aligning
\nthem in a specified manner to form a turbo alternator, a new
\ncommodity,  is\tnothing\t but a manufacturing  process.\t Now
\nreverting  to the first condition, the expression excisable
\ngoods  is defined in clause (d) of Section 2 of the Act\t to
\nmean goods specified in the Schedule to the CET Act as being
\nsubject\t to  a\tduty of excise including salt.\tIt  is\tthus
\nclear that the goods which are sought to be subjected to the
\nexcise\tduty  must find a place in the Schedule to  the\t CET
\nAct.   Impost  on a turbo alternator is levied\tunder  Entry
\n85.02  in  the\tsaid  Schedule,\t  which\t reads\tas  under  :\n<\/p>\n
————————————————————————–
\nHeading\t No.   Sub-Heading Description of Rate of  Duty\t No.
\nGoods\n<\/p>\n
—————————————————————————\n<\/p>\n
(1)\t\t(2)\t\t\t  (3)\t\t (4)\n<\/p>\n
—————————————————————————
\n85.02 ELECTRIC GENERA- TING SETS AND ROTARY CONVERTERS<\/p>\n
     8502.10  Diesel generating Nil sets assembled, at\tsite
\nof installation, from duty paid engine and generator<\/p>\n
     8502.90\t\t\tOther\t\t\t 13%\n<\/p>\n
————————————————————————–\n<\/p>\n
     A\tperusal\t of the Entry shows that a turbo  alternator
\ndoes  not find a place therein eo nomine.  The question then
\nwill  be  whether  a  turbo alternator\tfalls  within  the
\nmeaning\t of  electric generating set.  To bring\t a  turbo
\nalternator  under that heading it must be shown to have the
\nattributes  of excisable goods as understood in the Excise
\nLaw.   They are mobility and marketability.  The article  in
\nquestion  should be capable of being brought and sold in the
\nmarket\t a test which is too well established by series\t of
\ndecisions of this Court to be elaborated here.\tThere can be
\nno  doubt  that if an article is an immovable  property,  it
\ncannot\tbe  termed as excisable goods for purposes of  the
\nAct.   From  a\tcombined  reading   of\tthe  definition\t  of
\nimmovable  property  in\t Section  3  of\t the  Transfer\tof
\nProperty  Act, Section 3(25) of the General Clauses Act,  it
\nis  evident  that in an immovable property there is  neither
\nmobility  nor marketability as understood in the Excise Law.
\nWhether\t an  article  is permanently  fastened\tto  anything
\nattached  to  the  earth require determination of  both\t the
\nintention  as  well as the factum of fastening\tto  anything
\nattached  to the earth.\t And this has to be ascertained from
\nthe  facts  and\t circumstances of each case.   In  Municipal
\nCorporation  of\t Greater  Bombay  & Ors.   Vs.\t Indian\t Oil
\nCorporation  Ltd.   (1991  Suppl.  (2) SCC 18), one  of\t the
\nquestions  this Court considered was whether a petrol  tank,
\nresting\t on earth on its own weight without being fixed with
\nnuts  and bolts, had been erected permanently without  being
\nshifted\t from  place to place.\tIt was pointed out that\t the
\ntest  was one of permanency;  if the chattel was movable  to
\nanother\t place\tof use in the same position or liable to  be
\ndismantled  and re-erected at the later place, if the answer
\nto  the\t former\t is  in the positive it must  be  a  movable
\nproperty  but  if  the answer to the latter part is  in\t the
\npositive then it would be treated as permanently attached to
\nthe  earth.  In Quality Steel Tubes (P) Ltd.  vs.  Collector
\nof  Central Excise, U.P.<\/a>  (1995 (2) SCC 372), this Court had
\nto  consider the question whether the tube mill and  welding
\nhead  erected  and  installed  by   the\t appellant  for\t the
\nmanufacture of tubes and pipes out of duty-paid raw material
\nwere assessable to duty under residuary Tariff Item No.68 of
\nthe  Schedule,\tbeing excisable goods within the meaning  of
\nCentral\t Excise\t Act.\tWhile re-stating the  test,  namely,
\nfirst  the article must be goods and secondly that it should
\nbe  marketable or capable of being brought to market, it was
\nheld  that  goods which are attached to the earth  and\tthus
\nbecome\timmovable  did not satisfy the test of\tbeing  goods
\nwithin the meaning of the Central Excise Act nor can be said
\nto be capable of being brought to the market for being sold.
\nIn  that  case,\t it was found that both the tests  were\t not
\nsatisfied  and,\t therefore, the tube mill and  welding\thead
\nerected\t by the appellant were not exigible to excise  duty.
\nIt  was held that erection and installation of a plant could
\nnot  be held to be excisable goods and if such wide  meaning
\nwas  assigned,\tit  would result in bringing  in  its  ambit
\nstructures,  erections and installations which would  surely
\nnot  be\t in  consonance with accepted meaning  of  excisable
\ngoods  and  its exigibility to duty.  The  question  whether
\nmono  vertical\tcrystallisers answer the meaning of  goods
\nfell  for consideration of this Court in Mittal\t Engineering
\nWorks  (P)  Ltd.  vs.  Collector of Central  Excise,  Meerut<\/a>
\n(1997 (1) SCC 203).  Mono vertical crystallisers are used in
\nsugar factories to exhaust molasses of sugar.  The component
\nparts of mono vertical crystallisers were cleared on payment
\nof  excise duty from the premises of the appellants  therein
\nand  they  were then assembled, erected and attached to\t the
\nearth  at  the\tsite of the customers sugar  factory.\tThe
\nprocess\t involved  welding and gas cutting.  The CEGAT\theld
\nthat  the  mono vertical crystalliser was complete  when  it
\nleft  the  factory and upheld the demand of excise  duty  on
\nclearance  thereof.   This Court pointed out that  the\tmono
\nvertical  crystalliser,\t had  to be assembled,\terected\t and
\nattached  to  the earth by a foundation at the site  of\t the
\nsugar factory and it was not capable of being sold as it is,
\nwithout anything more.\tBharucha,J., speaking for the Court,
\nobserved :  The erection and installation of a plant is not
\nexcisable  and\tto so hold would, impermissibly, bring\tinto
\nthe   net   of\texcise\tduty   all  manner  of\tplants\t and
\ninstallations.\n<\/p>\n
     The  case\tof  Narne  Tulaman  Manufacturers  (P)\tLtd.
\n(supra)\t was  distinguished on the ground that in that\tcase
\nthe  contention that weighbridge was not goods within  the
\nmeaning\t of the Act, was not raised and no evidence in\tthat
\nbehalf was brought on record.  It was observed :  We cannot
\nassume\tthat weighbridges stand on the same footing as\tmono
\nvertical  crystallisers in that regard and hold that because
\nweighbridges were held to be exigible to excise duty so must
\nmono  vertical vertical crystallisers.\tHere, the  decision
\nof  this Court in Sirpur Paper Mills Ltd.  vs.\tCollector of
\nCentral\t Excise,  Hyderabad<\/a>  (1998 (1) SCC  400),  which  is
\nrelied\ton by the learned counsel for the Revenue, needs  to
\nbe  referred  to.   In that case, the question\twas  whether
\npaper-making  machine which was assembled and erected by the
\nappellant  by using duty paid components and by\t fabricating
\ncertain\t parts in their factory, was liable to excise  duty.
\nThe CEGAT recorded the finding that the whole purpose behind
\nattaching  the\tmachine\t to a concrete base was\t to  prevent
\nwobbling  of  the machine and to secure maximum\t operational
\nefficiency  and\t also for safety.  This court held  that  in
\nview  of those findings it was not possible to hold that the
\nmachinery  assembled  and  erected by the appellant  at\t its
\nfactory site was immovable property as something attached to
\nearth  like  a building or a tree.  The test, it was  noted,
\nwould  be whether the paper-making machine could be sold  in
\nthe  market and as the Tribunal had found as a fact that  it
\ncould  be sold, so the machine was held to be not a part  of
\nthat  the  aforementioned  two cases —\t Mittal\t Engineering
\nimmovable  property  of the company.  It appears  Works\t (P)
\nLtd.  and Quality Steel Tubes (P) Ltd.\t(supra), — were not
\nreferred  to in Sirpur Paper Mills Ltd.s case.\tFurther, in
\nthe  instant  case,  it\t is a common  ground  that  a  turbo
\nalternator  comes  into existence only when a steam  turbine
\nand  alternator with all their accessories are fixed at\t the
\nsite  and only then it is known by a name different from the
\nnames  of  its\tcomponents  in\tthe  market.   The  Tribunal
\nrecorded  the  finding that fixing of steam turbine and\t the
\nalternator  is\tnecessitated  by  the\tneed  to  make\tthem
\nfunctionally  effective to reduce vibration and to  minimise
\ndisturbance   to  the  coupling\t  arrangements\t and   other
\nconnections with the related equipments.  It also noted that
\nremoval of the machinery does not involve any dismantling of
\nthe turbine and alternator in the sense of pulling them down
\nor  taking  them to pieces but only undoing  the  foundation
\nbolts  arrangement  by which they are fixed to the  platform
\nand  uncoupling\t of the two units and, therefore, the  turbo
\nalternator  did not answer the test of permanency laid\tdown
\nby  this  Court\t in  the case of  Municipal  Corporation  of
\nGreater\t Bombay (supra).  In our view, the findings recorded
\ndo not justify the conclusion of the Tribunal inasmuch as on
\nremoval\t  a  turbo  alternator\t gets  dismantled  into\t its
\ncomponents   steam turbine and alternator.  It appears that
\nthe  Tribunal did not keep in mind the distinction between a
\nturbo alternator and its components.  Thus, in our view, the
\ntest  of permanency fails.  The marketability test  requires
\nthat  the goods as such should be in a position to be  taken
\nto  the\t market\t and  sold and from the\t above\tfindings  it
\nfollows\t that to take it to the market the turbo  alternator
\nhas  to be separated into its components — turbine and\t the
\nother  alternator  —  but then it would  not  remain  turbo
\nalternator,  therefore,\t the  test is  incorrectly  applied.
\nThough,\t there\tis  no finding that without  fixing  to\t the
\nplatform  such turbo alternator would not be functional,  it
\nis  obvious that when without fixing, it does not come\tinto
\nbeing,\tit  can hardly be functional.  It will be useful  to
\nrefer  to  the\tExplanatory Note issued\t by  the  Harmonized
\nSystem\tof Nomenclature (HSN) to which Mr.Sridharan  invited
\nout  attention.\t We also note that HSN received the approval
\nof  this  Court\t in CCE vs.  Woodcraft (1995 (3)  SCC  454),
\nwhich  explained  the  scope  of Heading 85.02\tas  under  :
\n..Generating  sets  consisting of the generator\t and  its
\nprime  mover  which are mounted (or designed to be  mounted)
\ntogether  as  one unit or on a common base (see the  General
\nExplanatory  Note  to  Section\tXVI),  are  classified\there
\nprovided  they\tare  presented\t together  (even  if  packed
\nseparately  for convenience of transport). The\tExplanatory
\nNote  further  contained :  Floors, concrete bases,  walls,
\npartitions,  ceilings, etc., even if specially fitted out to
\naccommodate  machines or appliances, should not be  regarded
\nas a common base joining such machines or appliances to form
\na  whole. From a perusal of the above Explanatory Notes, it
\nis  clear  that\t when  generating  sets\t consisting  of\t the
\ngenerator  and its prime base mover are mounted together  as
\none  unit  on  a common base they are classified  under\t the
\nHeading\t 85.02;\t in this connection floors, concrete  bases,
\nwalls,\tpartitions, ceilings etc., even if specially  fitted
\nout  to\t accommodate  machines\tor  appliances,\t cannot\t  be
\nregarded  as  a\t common\t base\tjoining\t such  machines\t  or
\nappliances  to\tform a whole.  On a combined reading of\t the
\nExplanatory   Notes,  extracted\t above,\t  there\t can  be  no
\ndifficulty  in\tinferring that installation or\terection  of
\nturbo  alternator on the concrete base specially constructed
\non  the\t land  cannot  be  treated as  a  common  base\tand,
\ntherefore, it follows that installation or erection of turbo
\nalternator  on the platform constructed on the land would be
\nimmovable  property, as such it cannot be excisable  goods
\nfalling\t within\t the  meaning of Heading 85.02.\t  For  these
\nreasons, we are of the view that the Tribunal is not correct
\nin  coming  to the conclusion that the turbo  alternator  is
\nexcisable  goods.  We, therefore, set aside the order  under
\nappeal\t and   allow\t  these\t  appeals   with   costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Triveni Engineering & Industries … vs Commissioner Of Central Excise & … on 8 August, 2000 Author: S S Quadri Bench: Syed Shah Quardri, J., Shivaraj V. Patil, J. PETITIONER: TRIVENI ENGINEERING & INDUSTRIES LTD. & ANR. Vs. RESPONDENT: COMMISSIONER OF CENTRAL EXCISE & ANR. DATE OF JUDGMENT: 08\/08\/2000 BENCH: Syed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-15411","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTriveni Engineering & Industries ... vs Commissioner Of Central Excise & ... on 8 August, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/triveni-engineering-industries-vs-commissioner-of-central-excise-on-8-august-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Triveni Engineering & Industries ... vs Commissioner Of Central Excise & ... on 8 August, 2000 - 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