1. Petitioners challenge the order holding that they are liable to pay excise duty on the 'Cooling Coils and Condensers' manufactured on their precincts. It is not disputed that -
(1) The goods are manufactured on the precincts of the factory of petitioners;
(2) The necessary materials are supplied by petitioners;
(3) The work is executed by Messrs Panchal Engineering & Iron Works at the behest of and for benefit of petitioners with the materials supplied by petitioners of payment of stipulated charges.
These facts have not been disputed for they are incapable of being disputed in view of the statement made by the partner of Messrs Panchal Engineering & Iron Works March 9, 1972 before the excise authorities (See para 6 of the order passed by the Collector at Annexure 'C'). Counsel for petitioners had relied on a decision of this High Court in Special Civil Application No. 1504 of 1970 before the Collector of Excise but could not do so before us since the decision in that case was rendered in favour of the assessee solely on the ground that there was no material to show that the product in question was 'cooling coils and condensers' inasmuch as all that was shown was that the assessee had welded pipes and joined the pipes by a 'U' Band. In the present case admittedly the product brought into existence is as a matter of fact 'cooling coils and condensers'. Such is the finding of fact recorded by Collector of Excise (See para 6 of Annexure 'C') inter alia on the basis of the evidence of a partner of Panchal Engineering Company. Says the Collector -
'This conclusion also finds adequate support from statement dated 9-3-72 of the said M/s. Panchal Engg. & Iron Works of Anand, which constitutes an unequivocal declaration that they had carried out actual manufacture of cooling coils and condensers as such, for and on behalf of the said factory out of the material supplied by the letter.' Counsel therefore could not seek support from the earlier mentioned judgment of this Court. Counsel however called our attention to Item 29A of the Tariff Schedule which reads as under : 'Item No. 29A - REFRIGERATION & AIR-CONDITIONINGAPPLIANCES------------------------------------------------------------------------Item No. Tariff Description Rate of duty------------------------------------------------------------------------(1) (2) (3)------------------------------------------------------------------------29A Refrigerating and air-conditioningappliances and machinery, all sorts,and parts thereof -(1) Refrigerators and other refrigerating 80% adappliances which are ordinarily sold valoremor offered for sale as ready assembledunits, such as ice makers, bottle coolers,display cabinets and water coolers.(2) Air-Conditioners and other air-conditioning 10% adappliances, which are ordinarily sold or valoremoffered for sale as ready assembled units,including package type air-conditioners andevaporative type of coolers.(3) Parts of refrigeration and air-conditioningappliances and machinery, all sorts. 125% advalorem.'------------------------------------------------------------------------
It was argued that on a true interpretation of Item 29A(3) cooling coils and condensers are not dutiable if the same are manufactured for use by the manufacturers and not for sale to others (petitioners had manufactured the same for use in their ice plant). In support of this argument Counsel leaned heavily on Mother India Refrigeration Industries P. Ltd. v. Supdt. of Central Excise, 1980 ELT 600 (All). Counsel emphasized the reasoning contained in para 9 of the aforesaid judgment which reads as under :
'Mr. Tewari appearing for the department submitted that the duty leviable under the Excise Act is on the event of manufacture. The purpose or the object of manufacture is irrelevant. It is immaterial whether the article is manufactured for the purpose of sale or consumption. It may even be destroyed. Yet the event of manufacture attracts the levy of excise duty. There is no quarrel with this proposition which is generally true under the Excise Act. But when the entry in the Schedule specifically refers to and restricts the applicability of duty goods which are assembled units and which are generally offered for sale, the concept of sale is necessarily brought in. As already seen, sub-entry (3) takes its colour from sub-entries (1) and (2) because of the specific direction of the heading by using the words 'parts thereof'. We are hence unable to agree with the authorities below that the tariff advice in relation to the refrigeration plants which are assembled at site was not relevant for determining the issue with regard to the parts which are assembled at site. In our opinion, these parts, though they may be called cooling coils and condensers, were not liable to excise duty within the meaning of Item 29A(3) of the Tariff Schedule.'
With great respect to the Allahabad High Court, we are unable to agree with the reasoning of the Allahabad High Court to the effect that sub-entry (3) of Item 29A takes its colour from sub-entries (1) and (2). It will be observed that the Allahabad High Court has accepted the proposition canvassed on behalf of the revenue that once an article is manufactured the object of manufacture is irrelevant. The mere manufacture of the article will attract the liability to pay excise duty because it is the event of manufacture which attracts the levy. The Allahabad High Court has rightly taken the view that this proposition is generally true under the Excise Act and there can be no quarrel with the first part of the discussion in para 9. The Allahabad High Court however, again saying so with respect, has been carried away by the fact that sub-entries (1) and (2) refer to goods which are generally offered for sale and has been carried away by the fact of the manner in which the entry is worded. On taking a close look at Item 29A it will be seen that what is printed at the top of the entry as 'caption' indicates the nature of the goods covered by the entry. It does no more than indicate what is the nature of the goods which are specified in the said entry. Cls. (1), (2) and (3) are independent of each other. Clause (3) in terms refers to goods which fall within the description of the said entry, namely, 'Parts of refrigerating and air-conditioning appliances and machinery, all sorts'. It is not disputed the cooling coils and condensers would fall within the category of 'appliances and machinery'. Counsel however argues that we must first read the scope of clause (1) and clause (2) and draw an inference therefrom that the goods covered by entry (3), namely parts of refrigerating and air-conditioning appliances and machinery, will attract excise duty only provided they are manufactured for sale. We seen no valid reason for reading the entry in that manner. Each of the three sub-clauses refers to different entries and specifies different rates of duty for the goods falling within the respective entries. The Allahabad High Court thought that there was something in the caption which justified an inference that it related to goods which were manufactured only for the purpose of sale and not for the purpose of user in installing a unit. There is no warrant for drawing this inference inasmuch as the caption reads as under :
'Refrigeration & Air-conditioning appliances.'
As we indicated earlier, in the first place the purpose of the caption is to provide a clue to the nature of the goods which are covered by the entry. But even otherwise if the caption is read in the manner in which it has been worded it does not justify or warrant an inference that it related to goods which are manufactured for the purpose of sale. Entry 29A adverts to goods which would fall within one or the other of the three classifications specified therein. The description of each category of goods if clearly mentioned in col. (2). So far as clause (3) is concerned the traiff description is 'Parts of refrigerating and air-conditioning appliances and machinery'. We cannot read the words 'manufactured for sale' in entry No. 3 by drawing upon the theory of 'Taking colour' which has no application in a case like the present one. If we inject these words we would be re-writing this section and we would be legislating which we cannot do. We are therefore unable to agree with the view taken by the Division Bench of the Allahabad High Court in the case of Mother India Refrigeration Industries P. Ltd. (supra) (In our opinion, the articles manufactured by the petitioners) (by giving a contract to Panchal Engineering Works which manufactured the articles in the precincts of the petitioners' factory), namely, cooling coils and condensers, squarely, fall within the description in Item 29A(3). The fact that they are manufactured on the precincts of the petitioners' factory makes no difference. It is not contended that the manufacture is by Panchal Engineering Works and not by petitioners for the very goods reason that the materials are supplied by petitioners and Panchal Engineering Works has only put in labour to bring into existence the product on behalf of the petitioner company. The view taken by the Collector of Central Excise as per Annexure 'C' dated June 20, 1974 as confirmed by the Central Board of Excise and Customs, as per Annexure 'D' dated May 14, 1979, as confirmed by Government of India exercising revisional jurisdiction, as per Annexure 'E' dated Sept. 24, 1980 is unexceptionable. We can interfere with the decision of the excise authorities culminating in the decision of the Central Government in exercise of revisional powers in exercising our power under Art. 227 provided and only provided any error apparent on the face of the record is committed. In our opinion, on error, much less an error, apparent on the face of the record, is committed. In fact, on our own we are inclined to take the same view. Even if two views are possible, the view taken by the excise authorities would have prevailed. In our view the view taken by the excise authorities is preferable to the other view. There is therefore no scope for interfering with the order passed by the competent authorities.
2. Counsel for petitioners has called our attention to Tariff Advice as per Annexure 'G' dated Sept. 30, 1969. In our view this Tariff Advice does not render any assistance to the petitioners. What has been provided therein is that when a refrigerating and air-conditioning plant is constructed which is not ordinarily sold as readily assembled unit countervailing duty would not be liable on it. We are not concerned with such a situation. Even if a company constructs a manufacturing unit for its own use by purchasing different duty-paid parts or other material, it would amount to manufacture. Construction of a plant can therefore be said to be something which has been manufactured. If therefore a refrigerating or air-conditioning plant is manufactured by a company for its own purpose it can be said that it has manufactured the plant. The reason for granting exemption is that the plant as a whole is not ordinarily sold as a readily assembled unit. This argument is of no avail to petitioners in the present matter since the petitioners have manufactured 'cooling coils and condensers' which are readily saleable in the market. In fact, instead of manufacturing this item themselves, the petitioners could have purchased duty paid cooling coils and condensers already manufactured by some other manufacturer from the open market and utilised the same.
3. Petition therefore fails and is rejected.