VADEHRA FURNISHERS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) M /s. Vadehra Furnishers and Others have filed these appeals against the demand of Central Excise duty and penalties imposed by the Commissioner (Central Excise), under the impugned Order -in -Original No. 46/2001, dated 10 -12 -2001.

(2.) SHRI Naveen Mullick, learned Advocate, mentioned that the Appellant No. 1, M/s. Vadehra Furnishers, having two factories in Okhla Industrial Area, are engaged in manufacturing of wooden furnitures and wooden articles; that they also take on contract the civil construction, interior decoration and like activities at site; that such job may include bringing into existence in the hotel room or in the office room of the corporate sector, the cupboards, storage racks, work stations, counters, etc. At the outset, he mentioned that the Appellants are not contesting the amount of Rs. 77,500/ - in respect of M/s. Bharat Soka Gakkai and out of Rs. 38,23,693/ -, in respect of M/s. Ericsson, the Appellants are contesting only in respect of Rs. 22.40 lakh. Accordingly, the duty of Rs. 77,500/ - and balance amount in the case of Ericsson is to be discharged by the Appellants and is upheld.

(3.) THE learned Advocate, further, submitted that for undertaking the job of interior decoration at site, the Appellants require use of mouldings of wood; that such mouldings are thin and are made at site by manual process; that it is not economically viable to manufacture the mouldings in the factory and send the same to the site located in different parts of the country for the reason that they are likely to get damaged during transportation and further the correct dimension in length can only, be adjudged by looking to the place where the same have to be used; that, therefore, such mouldings are invariably made by the workers manually at site and attract nil rate of duty under sub -heading No. 4405.10 of the Schedule to the Central Excise Tariff Act. He referred to the certificate given by Shri Ashok Nanda of M/s. Structural Engineering Consultants and Shri Sanjay Batra of EIH Ltd. wherein it is mentioned that the Appellants had fabricated mouldings and skirtings manually without the aid of power; that there is absolutely no evidence placed on record either at the stage of issuance of show cause notice or in the impugned Order to show that power has been used in the manufacture of mouldings. He mentioned that they had produced the invoices before the Adjudicating Authority showing that logs were sent to the site of the customer for making mouldings and skirting; that the cutting of wood with the aid of power does not amount to manufacture and attracts nil rate of duty; that it is from the wood cut to size that process of mouldings take place; that the sized wood is converted manually by use of hand tools to the mouldings of various shapes and as such no power is required to be used; that the finding of Commissioner that mouldings and skirtings had been made at factory with the aid of power is only based on presumptions and surmise which is not permissible as held by the Supreme Court in the case of Oudh Sugar Mills, 1978 (2) E.L.T. (J172) (S.C.). He also mentioned that they were even sending the labour from Delhi to Kerala for converting wood into mouldings and skirtings and he referred to one such Bill dated 31 -1 -96 of Dayanidhi Sutar of Kalkaji, New Delhi.