IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.87 OF 2007 The Commissioner of Central Excise, ) Mumbai-IV, Mumbai, 115, New Central ) Excise Building, Opp. Churchgate Rly. )

Station, Mumbai - 400 020. )..Appellant.

V/s.

1) Mr. Hutchison Max Telecom P.Ltd. )

Hutch House, Peninsula Corporate ) Park, Ganpatrao Kadam Marg, Lower ) Parel, Mumbai 400 013. )

)

2) Shri V.Narayanan, Project Manager, )

M/s.Hutchison Max Telecom P. Ltd. ) Hutch House, Peninsula Corporate ) Park, Ganpatrao Kadam Marg, Lower )

Parel, Mumbai 400 013. )..Respondents.

Mr.R.V.Desai, senior counsel with S.M.Shah, K.R. Chaudhari and Mrs.N.V.Masurkar i/b. H.P.Chaturvedi for appellant.

Mr.Prakash Shah i/b. PDS Legal for respondents.

CORAM : F.I.REBELLO AND J.P.DEVADHAR, JJ.

DATED : 9TH AUGUST, 2007.

ORAL JUDGMENT (PER F.I.REBELLO, J.)

The revenue aggrieved by the order of the CESTAT dated 9/9/2005 has preferred this appeal on the following questions of law:-

A) Whether the activity carried on by the respondents amounts to manufacture as covered by definition under section 2(f) of the Central Excise Act, 1944?

B) Whether the tribunal was justified in law in holding that the respondents are only service providers ignoring the definition of manufacturer as provided in section 2(f) of Central Excise Act, 1944 ?

C) Whether the tribunal was justified in holding in law that none of the requirement of section 3 of the Act are fulfilled ?

D) Whether the tribunal was justified in holding in law that the goods in question do not satisfy the test of marketability except relying on the Judgment of the Supreme Court ?

E) Whether the tribunal was justified in law in going into the question of marketability in view of the fact that the goods in question are covered by CHS No.8525 of the Central Excise Tariff 1985 ?

2. A few facts may be set out as under:-

A show cause cum demand notice was issued by the Commissioner of Central Excise calling upon the assessee to show cause to the duty demand with interest and penalty thereon. The assessee filed a reply denying the liability and contended that the goods were not excisable. The Commissioner, after giving opportunity to the respondents, passed an order dated 29/11/2004 confirming the demand of central excise duty as also penalty on the respondents. The respondents aggrieved by the same preferred appeals before the CESTAT and by order dated 9/9/2005 the appeals preferred by the respondents were allowed. CESTAT while allowing the appeals held that the goods manufactured are not freely marketable nor the appellant / respondents manufacturers. The learned Tribunal while allowing the appeals relied on the Judgments of the Supreme Court in the case of Triveni Engineering & India Ltd. V/s. Commissioner of Central Excise reported in 2000 (120) E.L.T. 273 (S.C.) and also MMoottii LLaammiinnaatteess PPvvtt.. LLttdd.. VV//ss.. CCoolllleeccttoorr ooff Central Exc., Ahmedabad reported in 1995 (76) E.L.T. 241 (S.C.). The CESTAT also relied on the board circular No.58/1/2002-CX dated 15/1/2002.

3. On behalf of the appellant, the learned counsel submits that the Judgments relied upon by the Tribunal are clearly distinguishable and so also the board circular. It is submitted that the transmission towers set up by the respondent amount to manufacture as the said towers is a new product with a distinct name, characteristics and use and is distinct from the components used in the manufacture. This transmission apparatus which is classifiable under Chapter 8525 of the Central Excise Tariff. It is further submitted that the assembling and erection of the transmission apparatus has been done in such a manner, so that it could be dismantled without substantial damage to its components and can be reassembled at site, if required. The Transmission apparatus, it is submitted are capable of being sold or shifted in original form or in the dismantled condition. The transmission apparatus manufactured at site was movable by na