- (1.) The Union of India through the Assistant Collector, Central Excise and Customs, Jodhpur Division is the appellant before us impugning a judgment and order dated January 24, 1994 passed by a learned Single Judge of our court in S.B. Civil Writ Petition No. 1531/82 whereby the writ application of M/s. Hindustan Development Corporation Ltd. stood allowed with a finding inter alia that the writ petitioner respondent firm was a job worker entitled to the petitioner under notification No. 119/75-C.E., dated April 30, 1975. The learned Single Judge further held that the rails which had been supplied by the Railway Board to the writ petitioner for converting them into points and crossings remained the same and as such the writ petitioner as an assessee was entitled to the benefit of the notification No. 119/75-C.E., dated April 30, 1975 which was intended to grant certain exemptions to the manufacturer who was merely a job worker.
(2.) The writ application was originally filed by the respondent writ petitioner M/s. Hindustan Development Corporation Ltd. praying inter alia that certain impugned notices dated 23-11-79, 22-5-80, 20-2-81 and 20-3-82 which were Annexures 3, 4, 5 and 8 respectively issued by the Superintendent, Central Excise, Bharatpur might be quashed and a finding be made by the writ court that the Union of India, Assistant Collector, Central Excise at Jaipur, Superintendent, Central Excise at Bharatpur and Collector, Central Excise at Jaipur be restrained from realising any duty from the writ petitioner-respondent on the basis of the value of rails supplied by the Railway Board to the petitioner for the period prior to April 1, 1981 by issuing the impugned show cause notices and/or any demands. It further prayed inter alia that the duty already paid by the writ petitioner-respondent on the clearance of points and crossings effected by it from March 1, 1975 to March 31, 1981 which was the only duty leviable in law and further to restrain the respondents Union of India, Assistant Collector, Central Excise at Jaipur, Superintendent, Central Excise, Bharatpur and Collector, Central Excise, Jaipur from realising any duty in respect of the clearance of points and crossings made by the writ petitioner in between the dates March 1, 1975 and March 31, 1981 by issuing necessary orders and directions. There was a further prayer that the respondents be restrained by issuing interim order and/or direction from realising difference of duty from the writ petitioner on the clearance of points and crossings from March 1, 1975 to March 31, 1981 during the pendency of the writ petition.
(3.) The case of respondent writ petitioner M/s. Hindustan Development Corporation Ltd. was that it owned an industrial unit known as General Engineering Works at Bharatpur and which carried on manufacture of railway points and crossings amongst other items. The said railway points and crossings (switches and crossings) were being assessed to central excise duty under item No. 68 of I Schedule (hereinafter referred as the Tariff') appended to the Central Excises and Salt Act, 1944. Pursuant to the contracts in between the writ petitioner and the Railway Board, the Railway Board of the Central Government used to supply to the writ petitioner rails free of cost for fabrication of points and crossings. The said rails were processed by fabrication or by processes like cutting, chiselling, bending, curving, shaping, etc., and they were then fitted with the help of nuts and bolts and other minor fittings to make them railway switches and crossings (points and crossings). They were then returned by the writ petitioner to the Railway Board. The contention inter alia of the writ petitioner is that points and crossings are nothing but rails and trains move over them. The difference in the use of the said items and the use of the ordinary rails is that these points and crossings are used for changing the railway lines when trains have to change rails. The rails did not belong to the writ petitioner but they were the properties of the Railway Board and the writ petitioner merely carried out fabrication and/or processing and charged from the railway only fabrication charges in accordance with their job contract for fabrication and supply of the points and crossings to the railways. The writ petitioner relied on photostat copy of the contracts entered into with the Government of India, Ministry of Railways for different job contracts for fabrication and supply of points and crossings to brief him its contention. It was further averred that the writ petitioner did not use any rails belonging to it in course of fabrication work except minor incidental materials and incidental components, the value of which was sought to be included in the fabrication charges in accordance with the terms of the contract. Thus no new article known to the trade emerged after the rails supplied by the Railway Board were subjected to necessary fabrication processes.;