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Friday, July 31, 2015

whether the activity of mounting of Water Purification and Filteration System (WPFS) on a base frame carried out by M/s Poonam Spark (P) Ltd. amounts to manufacture or not.=According to the Department of Revenue, the aforesaid work being carried out by the appellant, namely, assemble of the components resulted into a new product known as WPFS having different name and character and it amounted to “manufacture” as per Section 2(f) of the Central Excise Act, 1944 and, therefore, appellant was liable to pay excise duty. Show cause notice dated 13.05.1998 was served upon the appellant. The appellant submitted its reply taking the defence that it was only carrying out the job work of WPFS on the base frame and, therefore, it did not amount to manufacture of any new product. =The Tribunal has recorded the finding that PDL supplied the following materials to the appellant: (i) Filter Housing Cartridges (ii) U.V. Units (iii) Timer (iv) Mounting Plate & Screws (v) Tubings and Fittings The appellants then make the following types of Water Purification & Filteration System (WPFS): (i) WPFS with Dual Cartridges, (ii) WPFS with Single Cartridge, (iii) WPFS with Single Cartridge & Electronic Control Unit. It is also pointed out that Filter Housing and Cartridges are imported by PDL through M/s Cuno Asia Pte Ltd, Singapore and UV based Filteration and Purification unit from Rathi Brothers/ IWT Poona. The choice of cartridge depends upon the basis of filteration, the operating conditions and the customer's ability to afford the particular type of cartridge, etc. The appellants undertake the job of assembling all the items received from M/s. Perfect Drug Ltd. on a base plate and thus brings into existence a new and commercially different commodity known as Water Purification & Filteration System.It is on this basis, a finding of fact is arrived at by all the three Authorities that the activity undertaken by the appellant amounts to “manufacture” within the meaning of Section 2(f) of the Central Excise Act, 1944, since the end result of the process or activity resulted in new and different commercial product. We, thus, are of the opinion that on the basis of the aforesaid findings which are concurrent findings of all the Courts below, the correct legal principle has been applied.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 6692 OF 2004

|M/S POONAM SPARK (P) LTD.                  |.....APPELLANT(S)           |
|VERSUS                                     |                            |
|COMMISSIONER OF CENTRAL EXCISE, NEW DELHI  |.....RESPONDENT(S)          |


                                    WITH

                        CIVIL APPEAL NO. 2684 OF 2012

                               J U D G M E N T

A.K. SIKRI, J.
      The question of law which arises  for  consideration  in  the  present
case  is  whether  the  activity  of  mounting  of  Water  Purification  and
Filteration System (WPFS) on a base frame carried out by  M/s  Poonam  Spark
(P) Ltd. amounts to manufacture or  not.   The  aforesaid  issue  is  to  be
determined in the following factual background:
      One M/s Perfect  Drug  Limited  (PDL)  had  been  purchasing/importing
various components of WPFS classifiable under  Tariff  Heading  8421.   PDL,
after importing these materials, supplied the same to the appellant  herein.
 Job work was assigned to the appellant for the assembly of WPFS  on  behalf
of PDL.  Appellant takes job charges from PDL.   Various  parts  which  were
supplied by the PDL to the appellant were as follows:
Filter Housing & Cartridge
UV Units
Timer
Mounting Plate & screws
Tubings and Fittings

According to the Department of Revenue, the  aforesaid  work  being  carried
out by the appellant, namely, assemble of the  components  resulted  into  a
new product known as  WPFS  having  different  name  and  character  and  it
amounted to “manufacture” as per Section 2(f) of  the  Central  Excise  Act,
1944 and, therefore, appellant was liable to pay excise  duty.   Show  cause
notice dated 13.05.1998 was served upon the appellant.

The appellant submitted its reply  taking  the  defence  that  it  was  only
carrying out the job work of WPFS on the base frame and, therefore,  it  did
not amount to manufacture of any new product. The appellant  also  submitted
that WPFS are of three types:
i)    WPFS with Dual Cartridges
ii)   WPFS with Single Cartridge
iii)  WPFS with Single cartridge & Electronic Control Unit
      The filter housing and cartridge are imported by PDL through M/s  Cuno
Asia Pte Ltd, Singapore and UV based Filteration and Purification unit  from
Rathi Brothers/ IWT Poona.
      The following types of Cartridges are used for the above:
i)    Dirt and Rust Filteration Cartridge
ii)   Triple Action activated Carbon cartridge.

      It was submitted that the choice of cartridge depends upon  the  basis
of filteration, the operating  conditions  and  the  customer's  ability  to
afford the particular type of cartridge etc.

The explanation of the appellant was that this WPFS imported and mounted  on
a base plate by  the  appellants  are  used  in  various  post  mix  vending
machines installed at different  locations  by  the  customers.  The  water,
before it is mixed with the soft drink concentrate, is passed  through  this
WPFS and thereafter, this goes in the post  mix  vending  machine  where  it
gets mixed with the soft drink concentrate and thereafter, flows out of  the
vending machines as soft drink. Various items imported by PDL  and  sold  to
their customers can be mounted on a wall, near the water supply  point,  and
connected to get the desired quality of water. However  only  to  avoid  the
inconvenience to the customers and avoid damage to the plaster on  the  wall
these are mounted on a base frame and interconnected  by  simple  method  of
tightening nuts.  The customer is to simply place or affix  the  base  frame
near the water supply point and connect the WPFS  to  the  tap  to  get  the
desired quality of water.  This is akin to fixing  a  water  filter  on  the
Kitchen Wall near the tap.

The aforesaid explanation was not accepted  by  the  Adjudicating  Authority
which passed  Order-in-Original  dated  30.11.1999  thereby  confirming  the
demand raised in the show cause notice which was in the sum of Rs.6,04,624/-
 and a penalty was also imposed on the appellant.   Appellant  preferred  an
appeal to the Commissioner (Appeals) against the aforesaid order which  was,
however, dismissed by  the  Commissioner  on  28.02.2002.   This  order  was
challenged by the appellant before Custom Excise and Service  Tax  Appellate
Tribunal (CESTAT).  CESTAT has also dismissed the appeal of  the  appellant.
Still not satisfied with the outcome, present appeal  is  preferred  by  the
appellant under Section 35L(b) of the Central Excise Act,  1944  questioning
the correctness of the order passed by the Tribunal.

As is clear from the aforesaid narration of the  facts,  the  appellant  has
lost before all the fora below who have concurrently held that the  activity
undertaken by the appellant amounts to 'manufacture'.

Dubbing the aforesaid decision of the Authorities  below  as  erroneous,  it
was argued that each WPFS used by the appellant independently  fulfills  the
function described in Heading 8421. The appellant only undertakes  job  work
of mounting the imported WPFS on base frame which can also be undertaken  by
the customers at their end.  It was pleaded  that  interconnection  done  by
the  appellant  merely  facilitates  use  of  filteration  system   by   the
customers, otherwise, WPFS retains  the  same  characteristics  as  that  of
various items which have been imported by PDL and, therefore,  there  is  no
change in the characteristics of various imported items under Heading  8421.
 Our attention was drawn to the definition  of  'manufacture'  contained  in
Section 2(f) of the Central Excise Act, 1944  as  well  as  recent  judgment
dated 18.03.2015 in Civil Appeal No.8958 of 2003 rendered by this  Court  in
the case of M/s Satnam Overseas Ltd. v. Commissioner of Central Excise,  New
Delhi[1]  as  also  in  the  case  of  Servo-Med  Industries  Pvt.  Ltd.  v.
Commissioner of Central Excise,  Mumbai[2].   It  was  submitted  that  this
Court considered various earlier judgments and  culled  down  the  principle
that a duty of excise is levied  on  the  manufacture  of  excisable  goods.
'Excisable goods' brings in the concept of goods that are  marketable,  i.e.
goods capable of being sold in the market.  On the other  hand,  manufacture
is distinct from saleability, which takes place on the  application  of  one
or more processes.  This Court clarified that each process  may  lead  to  a
change in the goods, but  every  change  does  not  amount  to  manufacture.
There must  be  something  more  namely  transformation  by  which  new  and
different article emerges which has distinctive name, character or use.

We may remark that learned  counsel  for  the  appellant  may  have  rightly
stated the proposition of law predicated on  the  aforesaid  judgments.   In
fact, we find that the Tribunal was conscious of this  very  principle  and,
therefore, the entire  inquiry  surrounded  the  issue  as  to  whether  new
product, different from earlier  one  had  come  into  existence  after  the
process that was undertaken by the appellant.

The Tribunal has recorded  the  finding  that  PDL  supplied  the  following
materials to the appellant:
(i)   Filter Housing Cartridges
(ii)  U.V. Units
(iii) Timer
(iv)  Mounting Plate & Screws
      (v)   Tubings and Fittings
             The  appellants  then  make  the  following  types   of   Water
Purification & Filteration System (WPFS):
      (i)   WPFS with Dual Cartridges,
      (ii)  WPFS with Single Cartridge,
      (iii) WPFS with Single Cartridge & Electronic Control Unit.

      It is  also  pointed  out  that  Filter  Housing  and  Cartridges  are
imported by PDL through M/s Cuno  Asia  Pte  Ltd,  Singapore  and  UV  based
Filteration and Purification unit  from  Rathi  Brothers/  IWT  Poona.   The
choice of cartridge depends upon the basis  of  filteration,  the  operating
conditions and the customer's ability  to  afford  the  particular  type  of
cartridge, etc.  The appellants undertake the  job  of  assembling  all  the
items received from M/s. Perfect Drug Ltd. on a base plate and  thus  brings
into existence a new and commercially different  commodity  known  as  Water
Purification & Filteration System.

It is on this basis, a finding of fact  is  arrived  at  by  all  the  three
Authorities that  the  activity  undertaken  by  the  appellant  amounts  to
“manufacture” within the meaning of Section 2(f) of the Central Excise  Act,
1944, since the end result of the process or activity resulted  in  new  and
different commercial product.  We, thus, are of  the  opinion  that  on  the
basis of the aforesaid findings which are concurrent  findings  of  all  the
Courts below, the correct legal principle has been applied.

Accordingly, no merit is found in these appeals,  which  we  hereby  dismiss
with cost.


                             .............................................J.
                                                                (A.K. SIKRI)


                             .............................................J.
                                                               (N.V. RAMANA)

NEW DELHI;
JULY 29, 2015.

-----------------------
[1]   2015-TIOL-66-SC-CX
[2]   2015 (319) E.L.T. 578 (S.C.)

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