CESTAT-Chandigarh : Where some activities, namely, cutting, punching, welding, drilling and bending were undertaken by job worker on steel items, said activities did not amount to manufacture

CESTAT, Chandigarh Bench

Leotronics Scales (P.) Ltd. vs. Commissioner of Central Excise, Jalandha

Ashok Jindal, Judicial Member And Devender Singh, Technical Member

Section 2(72)

Period June, 2005 to February, 2006

Final Order No. 62091 Of 2017

Appeal No. E/2618 Of 2007

November  30, 2017

Circulars and Notifications: Notification No. 8/2003-CE, dated 1-3-2003 and Notification No. 214/86-CE, dated 25-3-1986

ORDER

Ashok Jindal, Judicial Member – The appellant is in appeal against the impugned order wherein the demand of Rs. 1,65,57,903/- has been confirmed along with interest and equivalent penalty was also imposed.

2. The brief facts of the case are that the appellant is registered with Central Excise department for manufacture of electronic weighbridges and parts of weighing machinery. The appellants were availing SSI exemption under Notification No.8/2003-CE dt.1.3.2003 and paying central excise duty at full rate after crossing the aggregate exemption limit of Rs. One crore for clearances made for home consumption for the year 2004-05. An investigation was conducted and it was found that the appellants were manufacturing and clearing the complete electronic weighbridges comprising digitizer, load cells, girders of specific size & end use, ground plates and C.I. plates of specific size & end use, joists of specific size & end use, platform of specific size and end use, from their factory premises and were clearing the same by showing the description as Fully Electronics Weighbridge or steel structure or load cells or Batteries or UPS or Digitizer etc. in their invoices during the period before June 2005 to February, 2006. The appellants were procuring the orders for complete weighbridge and clearing the same in unassembled/disassembled condition. Therefore the show cause notices were issued to the appellants to demand duty on electronic weighbridge cleared by the appellants in CKD and SKD condition. The matter was adjudicated and it was held that the appellants are liable to pay duty on complete weighbridge as the same has been cleared by the appellant in CKD and SKD condition, relying on the decision of the Hon’ble Apex Court, in the case of Narne Tulaman Mfg. (P.) Ltd. v. CCE 1998 (38) ELT 566. Aggrieved from the said order, the appellant is before me.

3. Learned Counsel for the appellant submits that the appellants purchase sheets, girders, plates and joists from the various suppliers. Thereafter, the steel items are subjected to the process of cutting, punching, welding drilling and bending. The aforesaid activities are carried out by the appellants as well as their job workers. But during the disputed period these activities were carried out by the job workers only. The job workers were either undertaking the job work at their own premises or at the site itself. Where the job worker was undertaking these activities at their own premises, the appellants were sending the truck containing load cell and digitizer from their factory to the job workers and from the premises of the job workers, the steel items were loaded to the truck and the complete truck was sent to the site of the buyers. Thereafter the processing activity of erection and commissioning of weighbridge was undertaken by the job workers at site itself. As the appellant is manufacturing digitizer in their factory and these digitizers were cleared without payment of duty by availing SSI exemption and on payment of duty after exhausting the SSI exemption limit. The appellants imported load cells in their factory and these load cells are supplied as such to the buyers even without opening the packages and no activity on this load cells has been carried out by the appellants. The processed steel materials, digitizers and load cells were cleared at the site of the buyer wherein these materials were used for erecting immovable weighbridges.

4. It is his contention that the Commissioner in the impugned order has held that the processing of cutting punching, welding, drilling and bending undertaken by the appellants or their job workers on steel items amounts to manufacture, therefore, appellant is liable to pay duty on the manufactured items net the job workers. It was also held that the various items namely steel structures, digitizer and load cells etc cleared by the appellants in unassembled/disassembled form is to be regarded as weighbridge only, therefore, the excise duty is required to be confirmed on these weighbridges. It was also held that the value of bought out terns namely load cell is to be added in the assessable value as the load cells are essential accessories and weighbridge cannot work without load cell. In the impugned order, the Commissioner has denied the benefit of cum duty price and Cenvat credit of the duty paid on the inputs used in the manufacture of weighbridge.

5. He further submits that the processing of steel items does not amount to manufacture. It is his submission that the Commissioner has relied upon the judgment of this Tribunal in the case of Mahindra & Mahindra Ltd. v. CCE 2005 taxmann.com 333 (New Delhi – CESTAT) (LB). He submits that the said decision of the larger bench is no more good law in the light of the decision of the Madhya Pradesh Power Transmission Co. Ltd. v. CCE [Excise Appeal No. 2935 of 2005] wherein it has been held that cutting to size and drilling and punching of holes in channels and plates does not amount to manufacture after discussing the decision of the judgment of the larger bench in the case of Mahindra & Mahindra held that the same will not be applicable for the reasons that the decision of this Tribunal in the case of Aruna Industries v. Collector of Central Excise 1986 taxmann.com 115 (CEGAT – New Delhi) was upheld by the Hon’ble Supreme Court in CCE v. Wainganga Sahakari S. Kharkhana 2002 (142) ELT 2 (SC) wherein it has been held that fabrication of trusses, columns and purlines does not amount to manufacture. He also relied on the decision of this Tribunal in the case of Elecon Engg. Co. Ltd. v. CCE 2005 (190) ELT 195 (New Delhi – CESTAT) which has been affirmed by the Hon’ble Supreme Court reported in 2012 (277) ELT A84 (SC) wherein it has been held that fabrication of columns and purlines by cutting, drilling, punching and welding of channels and angles does not amount to manufacture.

6. He further submits that the activity of cutting, punching, welding, drilling and bending of steel items has been done by the job workers. Therefore, it cannot be held that the appellant is the manufacturer. To support this contention, he relied on the decision of the Tribunal in the case of Raunag International Ltd. v. CCE 2015 (325) ELT 380 (Tri. – Delhi) and Diamond Cements Ltd. v. CCE 2012 (283) ELT 226 (Tri. – Delhi).

7. He further submits that the value of the bought out items cannot be included in the assessable value as load cell supplied as such to the buyer even without opening the packages. He submits that the duty is payable on the manufactured goods where load cell is not manufactured by the appellants Since the load cells were supplied in the same form in which the same were imported and no activity was undertaken on the load cell, no duty can be demanded on the value of load cell supplied to the buyers.

8. He further submits that the Commissioner has not appreciated the provisions of Rule 2(a) of the interpretative Rules. The said Rule is applicable on such goods which are cleared in CKD condition as the same cannot be removed as such due to difficulties in transportation etc and by assembling of the parts cleared in CKD condition movable excisable goods come to in existence as only the movable goods are eligible to excuse duty. It cannot be said that the weighbridges were cleared in CKD condition as even by assembling of the parts of the weighbridge in the factory, weighbridge cannot come into existence in a movable form. The weighbridge shall always come into existence in the immovable form and immovable goods are not liable to excise duty.

9. He further submits that the Commissioner has held that second portion of Rule 2(a) is also relevant in the present case which talks about the clearance of article complete or finished presented unassembled or disassembled. It is his contention that the Rule is not applicable in the present case as no finished or complete article was cleared in the assembled or disassembled form. The weighbridge was not complete when it was cleared from the factory. The weighbridge came into existence only at site that too immovable form after putting all the parts step by step with construction activities thus it cannot be said that the weighbridge were complete or finished when they were removed from the factory.

10. He further submits that the penalty is not imposable on the appellant as the appellant has never suppressed the facts of clearance of disputed items payment of duty. In fact the appellant wrote a letter dated 15.02.2005 stating that as the appellant product are not non-excisable, therefore, it will not be paying any excise duty. To support this contention, he relied on the decision of the Tribunal in the case of Savira Industries v. CCE 2016 (331) ELT 504 (Tri. – Chennai).

11. He further relied on the following decisions:

(i) Ashbee Systems (P.) Ltd. v. CCE [Final Order No. 51908-51909/2017-DB dt. 21.2.2017]

(ii) Ashbee Systems (P.) Ltd. v. CCE 2001 taxmann.com 95 (CEGAT – New Delhi)

(iii) CCE v. Ashbee Systems (P.) Ltd. 2004 taxmann.com 911 (Bang. – Trib.)

(iv) Mittal Engg. Works Ltd. v. CCE 1996 taxmann.com 138 (SC)

(v) Auto Measurematic Ltd. v. CCE 1997 (96) ELT 14 (SC)

(vi) CCE v. Solid & Correct Engg. Works 2010 (252) ELT 481 (SC)

12. On the other hand, learned AR opposed the contention of the learned Counsel and submitted that the issue came up before the Hon’ble Apex Court in the case of Narne Tulaman Manufacturers (P.) Ltd. (supra) wherein it was held that the weighbridge amounts to manufacture when both parts and final product separately and specifically dutiable. He also relied on the decision of the Hon’ble Supreme Court in the case of Sirpur Paper Mills Ltd. v. CCE 1997 taxmann.com 265 (SC) to say that paper making machine assembled and erected at site mainly form bought out components is a marketable commodity and is goods embedding it in a concrete base to ensure its wobble free operation does not make it immovable property in the sense a building or a tree. Machine is capable of being sold in parts after being dismantled from its base. Therefore, he prayed that the impugned order is to be upheld.

13. Heard the parties and considered the submissions.

14. We find that the facts of the case are not in dispute. Some parts are manufactured by the appellant, some parts are imported and some parte are taken to site for erection and commissioning of the same in terms of the order placed upon the appellants by different customers. Moreover, some activities namely, cutting, punching, welding drilling and bending are undertaken by the job worker on steel items. The case of the Revenue is that the processing of cutting, punching, welding drilling and bending amounts to manufacture in terms of the decision of the larger bench in the case of Mahindra & Mahindra (supra). We find that in the case of Jyoti Structures Ltd. v. CCE [2016] 70 taxmann.com 192 (Mum. – CESTAT) this Tribunal has examined the issue and also considered the decision of the larger bench in the case of Mahindra & Mahindra (supra) and thereafter observed as under:

“6.1 The other argument of the learned counsel for the appellant is that there is no change in the form of bought out items by mere punching, drilling, galvanizing etc. and they retain their identity as such. This activity cannot be termed as manufacture and, therefore, no duty is chargeable on such items. Here it is pertinent to mention the definition of manufacture, which is reproduced herein below: –

2(f) manufacture includes any process, –

(i) incidental or ancillary to the completion of a manufactured product;

(ii) which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or

(iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, and the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account.

6.2 Further, we find that the appellant received the duty paid products viz. angles, MS plates, channels etc. The process undertaken by them amounts only to cutting, punching of holes and galvanization and this process does not amount to manufacture, as this process does not transform the subject goods into a new and different product with a distinct name, character and use. Further, the learned counsel for the appellant submitted that the appellants case is squarely covered by the decision of the Tribunal in the case of CCE, Hyderabad v. Deepak Galvanising & Engg. Indus. P. Ltd. reported in 2008 (228) ELT 40 (Tri. – Bang.) = 2009 (16) STR 533 (Tribunal), wherein the Tribunal, after considering the number of judgments as mentioned therein, has observed in Para 4 of the judgment as under: –

4. On a very careful consideration of the issue, we find that the respondents received duty paid MS angles, rods, channels, plates, etc. and the activity carried out by them amounts merely to drilling of holes and cutting them and these are sent to the various parties for manufacture of towers. In our view the process undertaken by the respondents do not amount to manufacture as the MS rods plates, angles, etc. remain the same even after the process have been carried out. Therefore, there is no new manufacturing process involved. In our view the impugned order of the Commissioner (Appeals) is legal and proper. There is no merit in the Revenues appeals and the same are rejected.

The learned counsel further submitted that the Revenue filed appeal against the decision of the Tribunal in the case of Deepak Galvanising & Engg. Indus. P. Ltd. (supra) before the Hon’ble Andhra Pradesh High Court and the Hon’ble High Court dismissed the appeal of the Revenue as reported in 2015 (315) E.L.T A90 (A.P.). Further, galvanization does not bring a new commodity into existence as held by the Apex Court in the case of Gujarat Steel Tubes Ltd. v. State of Kerala reported in 1989 (42) ELT 513 (SC).

6.3 Further, it is pertinent to mention that the adjudicating authority in his finding has observed that the sum total of the processes carried out by the appellant results into excisable commodities attracting excise duty under sub-heading 7308.90 of the Schedule to the Central Excise Tariff Act, 1985 and incidentally the classification under the Harmonized System of Nomenclature also corresponds to the sub-heading 7308.90 of the Schedule to the CETA, 1985, which also has persuasive value. The learned counsel for the appellant submitted that the above conclusion of the adjudicating authority is not legally correct in view of the large number of decisions viz. CCE v. SAE (India) Ltd. reported in 1996 (84) ELT A48 (SC) Standard Industrial Engg. Co. v. CCE reported in 1988 (38) ELT 196 and Pawar Construction Co. v. CCE Chandigarh reported in 2002 (146) ELT 367 (Tri. – Delhi), wherein a consistent view has been taken that prior to 1-3-1988 being the date on which the Tariff Item 7308 was brought into effect, the process of converting bare angle into prepared angle will not amount to manufacture. The instant case relates to a period prior to 1-3-1988. Further, merely because specific entry was included viz. Heading 73.08 that ipso facto does not mean that the process amounts to manufacture. The Revenue has to further prove that the process undertaken amounts to manufacture and also that the resultant products are marketable. Therefore, keeping in view all the facts and circumstances, we are of the considered view that the process undertaken by the appellant, viz. punching, welding, trimming, drilling of holes, level cutting of edges and galvanizing do not amount to manufacture.”

15. Therefore, we hold that the activity of cutting, drilling, punching and welding of channels and angles does not amount to manufacture.

16. We also find that this Tribunal in the case of Elecon Engg. Co. Ltd. (supra) which has been affirmed by the Hon’ble Supreme Court wherein it has been held that fabrication of columns and purlines by cutting, drilling, punching and welding of channels and angles does not amount to manufacture. The same view been followed by this Tribunal in the case of Madhya Pradesh Power Transmission Co. Ltd. (supra) order dated 14.10.2014. Therefore, the said activity does not amount to manufacture. Moreover the same has been undertaken by the job worker. As the appellant has not followed the procedure and Notification No. 214/86-CE, if at all the activity amounts to manufacture the duty is to be paid by the job worker only and there is no proposal to demand duty from the job worker when it is admitted that the activity of cutting drilling, punching and welding of channels and angles has been undertaken by the job workers only during the impugned period.

17. As we have observed that the said activity does not amount to manufacture, therefore, the question of payment of duty on the said activity does not arise on the basis of various judicial pronouncements as discussed hereinabove.

18. We further find that learned AR has relied on the decision of the Hon’ble Supreme Court in the case of Narne Tulaman Manufacturers Pvt. Ltd. The said decision has been examined by Hon’ble Apex Court in the case of Mittal Engineering Works Pvt. Ltd. (supra) wherein the Hon’ble Apex Court has observed as under:

7. Learned counsel for Revenue relied upon the judgment in Narne Tulaman Manufacturers Pvt. Ltd., Hyderabad v. Collector of Central Excise, Hyderabad, 1988 (38) ELJ 566 (SC) = 1988 Supp. (3) SCR 1. An indicating system was one of the three parts of a weighbridge, namely, (1) a platform, (2) load cells and (3) the Indicating system. The Tribunal found that the appellant brought the three components together at site, fitted and assembled them so that they could work as one machine and, as such, the appellant manufactured a weighbridge. The question, therefore, was whether the activity carried out by the appellant, of assembling the three components of the weighbridge, brought into being a complete weighbridge, which had a distinct name, character or use. The argument of the appellant was that it was making only a part of the weighbridge, that is, the indicating system, and that alone was dutiable. It was held that the end product, namely, the weighbridge, was a separate product which came into being as a result of the endeavour and activity of the appellant and the appellant must be held to have manufactured it. The appellants case that it was liable only for a component pad and not the end product was, therefore, rejected.

8. Learned counsel for the Revenue submitted that if even a weighbridge was excisable, as held in the case of Narne Tulaman Manufacturers Pvt. Ltd., so was a mono vertical crystalliser. The only argument on behalf of Narne Tulaman Manufacturers Pvt. Ltd. was that it was liable to excise duty in respect of the indicating system that it manufactured and not the whole weighbridge. The contention that weighbridges were not goods within the meaning of the Act was not raised and no evidence in that behalf was brought on record. We cannot assume that weighbridges stand on the same footing as mono vertical crystallisers in that regard and hold that because weighbridges were held to be exigible to excise duty so must mono vertical crystallisers. A decision cannot be relied upon in support of a proposition that it did not decide.

19. Further in the case of Auto Measurematic Limited (supra), the Hon’ble Supreme Court has examined the decision of Name Tulaman Manufacturers Pvt. Ltd. and also the decision in the case of Mittal Engineering Works Pvt. Ltd. has further observed as under:

3. The decision in the case of Narne Tulaman Manufacturers was considered by this Court in the case of Mittal Engineering Works (P.) Ltd. v. Collector of Central Excise, Meerut, 1996 (88) ELT 622, and it was explained that the only argument on behalf of Narne Tulaman Manufacturers had been that it was liable to excise duty in respect of the indicating system that it manufactured and not the whole weighbridge. The contention that weighbridges were not goods within the meaning of the statute was not raised and no evidence in that behalf was brought on record. The Narne Tulaman Manufactures judgment did not lay down that weighbridges were excisable goods.

20. Further, we find that in Narne Tulaman Mfg. Pvt. Ltd. (supra), the facts of the case are the appellants were assembling weighbridge at site wherein in the present case, the appellant bought three components fitted them into weighbridge so that it can work as on machine as such. But the same are not the facts in this case. In fact, the appellant is manufacturing digitizer and clearing the same on payment of duty and other bought items gone directly at site and thereafter the job worker has been doing the activity of erection and commission of weighbridge. The facts of this case, are altogether different from the facts of Narne Tulaman Manufacturers Pvt. Ltd. (supra), therefore cannot be equated with that.

21. Further, the decision in the case of Sirpur Paper Mills Ltd. is also not applicable to the facts of this case. As in the said case, the paper making machine assembled and erected at site mainly from bought out components and it was embedded in a concrete base to ensure its wobble free operation that is also not the case in hand as in the case in hand, erection, commissioning and installation of weighbridge was done at site and after erection, commissioning and installation of weighbridge becomes improvable property.

22. In that circumstance, the decision of Ashbee Systems Pvt. Ltd. (supra) is applicable to the facts of the present case. In the said case, the facts of the case are as under:

4. As per the facts, on record, the appellants are manufacturing some of the parts of the weighbridge which are being cleared by them on payment of duty. The other parts of the weighbridge are either being procured by them from the other manufacturer or are being imported. All the parts of the weighbridge are being cleared by them under one invoice and/or otherwise and taken to site for assembling, erection of the same and commissioning of the same in terms of the orders placed upon them by different customers.

5. A dispute arose between the appellant and the Revenue as regards the excisability of weighbridge. The Revenue was of the view that inasmuch as all the parts and components of weigh bridge are being cleared by the appellant under the cover of one invoice, the same amounts to clearance of complete weigh bridge in SKD or CKD condition. As such the proceedings stand initiated against them for recovery of demand, culminating into passing in the present impugned order.

23. This Tribunal relied on the earlier decision Mahesh B. Patel v. CCE 2004 (176) ELT 415 (Tri. – Bang.) again this Tribunal has observed as under:

3. We have carefully considered the submissions made by both the sides. From the records we find that the respondents M/s. Ashbce Systems Private Ltd., New Delhi have assembled and fabricated an electronic weigh bridge system at the sight of M/s. HPCL Ltd., Bottling Plant Kondapally. The work involved was conversion of the mechanical weigh bridge into electronic weigh bridge and the weigh bridge was embedded to the earth. The Respondents have carried out the work of dismantling of mechanical weigh bridge modifying deck and foundation fitting of load cells, re-erection of weigh bridge calibration and fabrication. The work undertaken by them includes the following :

(a) Existing concrete foundation was partly broken, plates of iron and steel were placed vertically and the foundation was strengthened with the help of reinforcement bars.

(b) On such concrete foundation, pillars were built in which the load cells bases were embedded.

(c) On the load cell bases coming out from the pillars, iron and steel platform was placed and the assembling was undertaken.

(d) The junction box was fixed below the platform and the load cells were connected through a cable and such cable then fitted with the Digital Weight Indicator kept separately in a room which indicates the weight of the item to be weighed.

We find that in case of Sirpur Paper Mills Ltd. reported in 1998 (97) ELT 3 (SC), it was held that the purpose behind attaching the paper machine to a concrete base was to prevent the wobbling of the machine and to secure maximum operational efficiency and for safety. It was not possible to hold the machine assembled and erected as immovable property. We find that in case of Narne Tulaman, the Apex Court have considered only the aspect of manufacture and not the aspect of marketability. However in the case of CCE, Jaipur v. Manstructurals Ltd., 2001 (130) E.L.T. 401, the Supreme Court has held that it is to be determined whether structurals that the department sought to be made liable to excise duty were new identifiable goods which were product as a result of manufacturing process and which are marketable. Thus the test of marketability or capable of being marketed is to be applied before any goods can be held to be liable to excise duty. In the present case, the electronic weigh bridge system which comes into the existence is firmly attached to the earth and it cannot be taken as such to the market without damaging and cannot be sold as such, therefore it is not marketable product in its existing form. It has to be treated as immovable property fully attached to the earth. It is therefore, not excisable.

4. Further, in the case of Ashbee Systems Pvt. Ltd-2001 (134) ELT 717 (Tri. – Delhi) wherein this Tribunal has observed as under:

5. We have considered the submissions of both the sides, it is well settled law since the landmark decision of the Apex Court in the case of Union of India v. Delhi Cloth & General Mills – 1977 (1) E.L.T. (J 199) (S.C.) that to become goods an article must be something which can ordinarily come to the market to be bought and sold. The Supreme Court again in the case of Moti Laminates Pvt. Ltd. v. CCE, 1995 (76) E.L.T. 241 (S.C.) held that the expression produced or manufactured mean that the goods so produced must satisfy the test of marketability. In Narne Tulaman’s case the Apex Court considered only the aspect of manufacture and not the aspect of marketability. The Supreme Court itself observed in Mittal Engineering Works (P.) Ltd., supra, that the contention that weigh bridges were not goods within the meaning of the Act was not raised and no evidence in that behalf was brought on record. A decision cannot be relied upon in support of a proposition that it did not decide. The Constitutional Bench of the Supreme Court in CCE Jaipur v. Man Structurals Ltd. – 2001 (130) ELT 401 (S.C) = 2001 (44) RLT 113 (SC) has held that it is to be determined whether the structurals that the Department sought to make exigible to excise duty were new, identifiable goods which were produced as a result of manufacture or process and which are marketable. Thus the test of marketability or capability of being marketed is to be applied before any goods can be held to be exigible to excise duty.

24. Further, in the case of Triveni Engg. & Industries Ltd. v. CCE 2000 (120) ELT 273 (SC) Tribunal has observed as under:

21. It will be useful to refer to the Explanatory Note issued by the Harmonized System of Nomenclature (HSN) to which Mr. Sridharan invited out attention. We also note that HSN received the approval of this Court in CCE v. Woodcraft [1995 (77) ELT 23 (S.C.) = 1995 (3) SCC 454], which explained the scope of Heading 85.02 as under:

. . . . . Generating sets consisting of the generator and its prime mover which are mounted (or designed to be mounted) together as one unit or on a common base (see the General Explanatory Note to Section XVI), are classified here provided they are presented together (even if packed separately for convenience of transport).”

The Explanatory Note further contained:

Floors, concrete bases, walls, partitions, ceilings, etc., even if specially fitted out to accommodate machines or appliances, should not be regarded as a common base joining such machines or appliances to form a whole.

22. From a perusal of the above Explanatory Notes, it is clear that when generating sets consisting of the generator and its prime base mover are mounted together as one unit on a common base they are classified under the Heading 85.02; in this connection floors, concrete bases, walls, partitions, ceilings etc., even if specially fitted out to accommodate machines or appliances, cannot be regarded as a common base joining such machines or appliances to form a whole. On a combined reading of the Explanatory Notes, extracted above, there can be no difficulty in inferring that installation or erection of turbo alternator on the concrete base specially constructed on the land cannot be treated as a common base and, therefore, it follows that installation or erection of turbo alternator on the platform constructed on the land would be immovable property, as such it cannot be ‘excisable goods’ falling within the meaning of Heading 85.02.

25. Relying on the above said judicial pronouncements as held by this Tribunal in the case of Ashbee Systems Pvt. Ltd. (supra) that electronic weighbridge cannot be treated as goods which is capable of being brought to the market as bought and sold as such therefore, we hold that the appellants are not liable to pay duty on weighbridges as whole. Moreover, the appellants are paying duty on parts and activity of erection and commissioning at site of the buyer undertaken by the job worker therefore, we hold that the appellants are not manufacturing complete weighbridge. We further take note that the issue has been decided by this Tribunal in the case of Ashbee Systems Pvt. Ltd. (supra).

26. In these circumstances, the impugned demands are sustainable. Consequently, the impugned order is set aside and the appeal is allowed.

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