Excisability Appeals Lie to the Supreme Court; Cutting and Grooving ACPs Does Not Amount to Manufacture
1. Introduction
In M/S ALUPRO BUILDING SYSTEMS PVT. LTD. v. COMMISSIONER OF CENTRAL EXCISE BANGALORE II,
the Supreme Court considered two important issues under the Central Excise Act, 1944:
first, whether the High Court had jurisdiction under Section 35G to decide an appeal involving
excisability; and second, whether cutting, grooving/routing, bending and fixing imported
Aluminum Composite Panels (“ACPs”) for façade installation amounted to “manufacture” under
Section 2(f) of the Act.
The appellant, a construction contractor, imported pre-coated ACPs and cut/grooved them according
to building-design requirements before installing them on exterior façades. The Revenue contended
that this process created a new commercially identifiable product and therefore attracted excise duty.
The assessee argued that the ACPs remained ACPs and no new product with distinct name, character
or use emerged.
2. Summary of the Judgment
The Supreme Court allowed the assessee’s appeal and set aside the Karnataka High Court’s judgment.
It held:
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Appeals involving determination of excisability have a direct and proximate relation to the
rate of duty for purposes of assessment and therefore lie to the Supreme Court under Section
35L, not to the High Court under Section 35G.
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Section 35L(2), inserted in 2014, is clarificatory and retrospective. It merely made explicit
that disputes on taxability or excisability are included within questions relating to “rate of duty”.
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Cutting and grooving/routing ACPs to required size and shape for installation does not amount
to “manufacture” because no new product with a distinct name, character, identity or use emerges.
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Marketability must be proved by the Revenue where excise duty is sought to be imposed, but
since no transformation occurred in this case, the issue of marketability became secondary.
3. Analysis
A. Jurisdiction under Sections 35G and 35L
The Court held that Section 35G excludes High Court appeals from CESTAT orders relating to
determination of any question having a relation to the rate of duty or value of goods for purposes
of assessment. The question whether goods are excisable is not separate from rate of duty; it is
logically prior to assessment. If goods are not excisable, no rate of duty applies at all.
Therefore, the Revenue’s appeal from CESTAT should have been filed directly before the Supreme
Court under Section 35L. The High Court lacked jurisdiction to decide the question.
B. Nature of Section 35L(2)
Section 35L(2) states that determination of any question relating to rate of duty includes
determination of taxability or excisability of goods. The Court held this amendment to be
clarificatory, not substantive. It did not create a new appellate route; it merely clarified what
was already implicit in the statutory scheme.
C. Meaning of “Manufacture”
The Court reaffirmed the settled two-fold test for manufacture:
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Transformation test: whether a distinct commercial product with a new name,
character, identity or use emerges.
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Marketability test: whether the transformed product is marketable or capable
of being marketed as a distinct product.
Applying this test, the Court found that the ACPs remained ACPs even after cutting, grooving,
bending and fixing. The process only adapted the panels for installation on a particular building.
It did not alter their essential character, commercial identity or use.
4. Precedents Cited
Navin Chemicals Manufacturing & Trading Co. Ltd. v. Collector of Customs
This case was relied upon for interpreting expressions such as “relation to rate of duty” and
“value of goods for purposes of assessment”. The Supreme Court used the principle that such
questions must have a direct and proximate relationship with assessment. The present Court held
that excisability satisfies that requirement because it is foundational to assessment.
CST v. Ernst and Young (P) Ltd.
The Delhi High Court decision was cited to show that whether a service is taxable directly relates
to rate of tax. The Supreme Court applied the same logic to excisability of goods.
CCE v. Reliance Media Works Ltd.
The Full Bench of the Bombay High Court held that taxability or excisability questions fall within
the Supreme Court’s appellate jurisdiction. It also held that Section 35L(2) is clarificatory. This
reasoning was expressly approved and applied.
Commr. of Customs v. Motorola (India) Ltd.
This decision interpreted pari materia customs provisions and reinforced that appeals involving
rate of duty or valuation for assessment must go to the Supreme Court. It supported the jurisdictional
ruling in the present case.
Munshi Ram v. Municipal Committee, Chheharta
The Court cited this authority for the principle that where a revenue statute prescribes a particular
remedy before a particular forum, that remedy must be pursued in that manner alone.
CIT v. Podar Cement (P) Ltd.; M. Rajendran v. KPK Oils & Protiens India (P) Ltd.; University of Kerala v. Merlin J.N.
These decisions were used to explain when an amendment is clarificatory and retrospective. The
Court held that Section 35L(2) merely clarified the existing meaning of Sections 35G and 35L and
therefore operated retrospectively.
This Constitution Bench decision laid down the classic test that manufacture means bringing into
existence a new substance, not merely causing some change in an existing substance. It formed the
foundation of the Court’s conclusion that altered ACPs were not newly manufactured goods.
Union of India v. J.G. Glass Industries Ltd.; Servo-Med Industries (P) Ltd. v. CCE; Quippo Energy Ltd. v. CCE
These cases shaped the modern two-fold test of manufacture: transformation plus marketability.
The Court clarified that mere processing or making goods more suitable for use is not enough unless
a commercially distinct product emerges.
Bharat Forge and Press Industries (P) Ltd. v. CCE
This case held that converting pipes into pipe fittings by processes such as forging or welding did
not necessarily change their essential character. The Court used it to support the proposition that
cutting or shaping goods for functional use does not automatically amount to manufacture.
CCE v. S.R. Tissues (P) Ltd.
The Court relied on this precedent where jumbo tissue rolls cut into smaller tissue products were
held not to involve manufacture because their essential characteristics remained the same.
Aman Marble Industries (P) Ltd. v. CCE
This case held that cutting marble blocks into slabs did not amount to manufacture because the end
product remained marble. The analogy supported the assessee’s case that ACPs remained ACPs.
This decision held that crushing dolomite lumps into chips and powder did not create a new
commodity. It reinforced that change in size or shape alone is insufficient.
These decisions were cited on marketability. The Court reiterated that marketability is essential
for excisability and must be proved by the Revenue with evidence, not assumptions.
CCE v. Ambalal Sarabhai Enterprises (P) Ltd.; CCE v. United Phosphorus Ltd.; Hindustan Zinc Ltd. v. CCE; Gujarat Narmada Valley Fertilizer Co. Ltd. v. Collector of Excise & Customs; Cipla Ltd. v. CCE
These authorities further establish that marketability is a factual question. The Revenue must show
that the product is known, capable of being bought and sold, or commercially dealt with as a distinct
article.
Bater v. Bater
This case was cited to explain the civil standard of proof: preponderance of probabilities. The Court
applied this flexible standard to proof of marketability, noting that the degree of evidence required
may vary depending on the nature of the goods.
5. Legal Reasoning
The Court’s reasoning proceeded in two stages. First, it held that the High Court’s jurisdiction was
barred because the dispute concerned excisability, which is directly connected to assessment and
rate of duty. Second, it examined the merits and held that the process undertaken by the assessee
did not satisfy the transformation test.
The Court emphasized that manufacture requires more than physical alteration. The law requires
emergence of a distinct commercial article. Here, cutting and grooving merely made the ACPs fit
for particular façade requirements. The material, identity and commercial character of the ACPs
remained unchanged.
6. Impact of the Judgment
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Appellate clarity: Disputes on excisability must be taken directly to the Supreme
Court under Section 35L, not to High Courts under Section 35G.
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Manufacture test reaffirmed: Mere cutting, grooving, bending, sizing or adapting
goods for installation will not amount to manufacture unless a new commercially distinct product
emerges.
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Revenue burden strengthened: The Revenue must prove marketability through
evidence and cannot rely merely on the fact that some process was performed.
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Construction and fabrication sectors: Contractors adapting imported or purchased
materials for site-specific installation may rely on this ruling where no distinct product is created.
7. Complex Concepts Simplified
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Excisability: Whether goods are capable of being subjected to excise duty at all.
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Rate of duty: The applicable tax rate, but in appellate jurisdiction it also includes
foundational questions like whether the goods are excisable.
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Manufacture: A process that creates a new and distinct commercial product, not
merely a change in size, shape or usability.
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Marketability: The ability of the product to be bought or sold as a distinct commercial
article.
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Clarificatory amendment: An amendment that explains what the law always meant,
rather than creating a new rule.
8. Conclusion
The judgment is significant on both jurisdiction and substantive excise law. It confirms that
excisability disputes fall within the Supreme Court’s appellate jurisdiction and that Section 35L(2)
is retrospective and clarificatory. On manufacture, it reiterates that mere adaptation of goods for
specific use does not attract excise duty unless a new, distinct and marketable product emerges.
In practical terms, ACPs cut and grooved for façade installation remain ACPs. The process is one
of preparation and installation, not manufacture.