Judgment:
2. The issue involved herein is determination of the activity indulged in by the applicants, viz. obtaining duty paid sections from the aluminium manufacturers of such sections and thereafter cutting them to size, drilling holes etc. to make window frames, door frames etc. would amount to manufacture under the provisions of the Central Excise Act, 1944 or not and if it amounts to manufacture whether duty is to be determined on the entire value of the window, i.e. with the frame level cost of plast and other materials also brought in and used or it should be only job charges and cost of aluminium sections. Penalty liability and demands are raised.
3. After considering the material and finding that the larger bench in the case of Mahindra & Mahindra 2005 (71) RLT 513 has been relied upon by the learned Commissioner to come to his conclusions that the activity would amount to manufacturer in spite of the fact that that was a case of steel structures, indicating the similar activity at site and the issues in this case are aluminium sections which were drilled etc.. We find that the case of the Supreme Court in CCE v. Ajit India Pvt. Ltd. 2000 (119) ELT 274 (SC) was relied upon by the assessee before the Commissioner and the Commissioner has distinguished and not relied on this decision only on the ground that it concerned 'pieces of aluminium" and the issues before him in the present case were 'sections of aluminium cut into specific length'. On perusal of the decision of the Supreme Court in Ajit India supra, we find that the distinguishing feature has been brought out by the learned Commissioner without any reasons to support the same. On a perusal of Ajit India decision, we find the same appears to be on aluminium sections cut to size. We would follow the Ajit India decision cited supra and allow these applications by granting full waiver and recovery thereof pending regular hearing of the appeals.