BHARUCHA, J.

1. The order of the Customs, Excise and Gold (Control) Appellate Tribunal under appeal confirms the levy of excise duty on mono vertical crystallizers.

2. Mono vertical crystallizers are used in sugar factories. Their function is to exhaust molasses of sugar. A general note placed on the record of the Tribunal by the appellants, who have patented the mono vertical crystallizer, describes its function and manufacturing process. The mono vertical crystallizers is fixed on a solid RCC slab having a load-bearing capacity of about 30 tonnes sq. mt. It is assembled at site in different sections shown by the packing list given to customers with the invoices. This consists of bottom plates, tanks, coils, drive frames, supports, plates, distance places, cutters, cutter supports, tank ribs, distance plate angles, water tanks, coil extension pipes, loose bend angles, coil supports, railing stands, intermediate platform, drive frame railings and flats, oil trough, wormwheels, shafts, housing, stirrer arms and support channel, pipes, floats, heaters, ladders, platforms, etc. The parts afterstated are cleared from the premises of the appellants and the mono vertical crystallizer is assembled and erected at site. The process involves welding and gets cutting. Where the assembly and erection is done by the appellants welding rods, gases and the like are procured from the stores of the customer and the customer sends to the appellants debit notes for their value. A sketch and photograph produced by the appellants before the authorities shows that the mono vertical crystallizer is a tall structure, rather like a tower with a platform as its summit.

3. The appellants were required to show cause why they should not pay excise duty on mono vertical crystallizers cleared from their premises during 1982-83. The Collector, Central Excise, Meerut, confirmed the demand. He held, relying on orders placed by sugar factories with the appellants and the correspondence in that behalf, that the manufacture of a mono vertical crystallizer was complete in all respects at the time of its clearance from the appellants premises; its delivery in knocked-down condition was only to facilitate transport. It was clear that the mono vertical crystallizer was known to the trade and capable of being sold and purchased in the market, at the time and place of removal and before erection and commissioning, and should be termed goods. The mono vertical crystallizer had a distinct name and was meant for a definite use. As the finished product was the result of the processes of welding, bending, cutting, drilling etc. and had a name, character and use different from the raw materials used, the process amounted to manufacturer within the meaning of the Central Excise and Salt Act, 1944 (hereinafter referred to as the). The test of marketability and of being goods was satisfied.

4. The Tribunal, in the appeal filed by the appellants, noted the debit notes aforementioned and found that in the case of one customer there was no debit note. The Tribunal concluded.

"Thus in the case of this party complete Sugar Mill Machinery which the appellants describe as mono vertical crystallizers in the invoice left the factory. Besides it is also observed that while in the case of Madurantakam Cooperative Sugar Mills the appellants collected erection charges of Rs. 40, 000 in some cases erection cases was left to the customers themselves. This destroys the appellants argument that the crystallizer comes into existence only after erection at site."

5. The principal question to which we must address ourselves is whether mono vertical crystallizers are goods upon which excise duty under the provisions of the can be levied.

6. In Union of India v. Delhi Cloth General Mills Co. Ltd. 1963 AIR(SC) 791] a Constitution Bench considered the application of the provisions of the to the hydrogenated oils that are known as vanaspati. Goods were not defined in the. The meaning, as found by the Court from dictionaries, showed "that to become goods an article must be something which can ordinarily come to the market to be bought and sold." In Bhor Industries Ltd. v. CCE [ 1989 (1) SCC 602 [LQ/SC/1989/62] : 1989 SCC(Tax) 98] the view taken in the case of Delhi Cloth and General Mills Co. Ltd. 1963 AIR(SC) 791] and reiterated in South Bihar Sugar Mills Ltd. v. Union of India [ 1968 (3) SCR 21 [LQ/SC/1968/29] : 1968 AIR(SC) 922] and Union Carbide India Ltd. v. Union of India [ 1986 (2) SCC 547 [LQ/SC/1986/108] : 1986 SCC(Tax) 443] was applied to crude PVC films. It was held that they : (SCC p. 611, para 9).

"Were not known in the market and could not be sold in the market and were not capable of being marketable."In Indian Cable Co. Ltd. v. CCE [ 1994 (6) SCC 610 [LQ/SC/1994/891] ] this Court considered the question of PVC compounds, and observed that marketability was a decisive test for dutiability. It meant that the goods were saleable or suitable for sale. They need not in fact be marketed. They should be capable : (SCC p. 618, para 13).

"of being sold or being sold, to consumers in the market, as it is - without anything more."

The case that comes closet to that which we have before us is the case of Quality Steel Tubes (P) Ltd. v. CCE [ 1995 (2) SCC 372 [LQ/SC/1994/1187] ]. The issue was whether : (SCC p. 373, para 1).

"the tube mill and welding head erected and installed by the appellant for manufacture of tubes and pipes out of duty-paid raw material."

was assessable to excise duty. The Court observed, having regard to the earlier decisions aforementioned : (SCC p. 376, para 5).

"The basic test, therefore, of levying duty under the is twofold. One, that any article must be goods and second, that it should be marketable or capable of being brought to the market. Goods which are attached to the earth and thus become immovable and do not satisfy the test of being goods within the meaning of the nor it can be said to be capable of being brought to the market for being bought and sold." *

It was also said that the : (SCC p. 376, para 6).

"erection and installation of a plant cannot be excisable goods. If such wide meaning is assigned it would result in bringing in its ambit structures, erections and installations. That surely would not be in consonance with accepted meaning of excisable goods and its exigibility to duty." *

7. Learned counsel for the Revenue relied upon the judgment in Narne Tulaman Manufacturers (P) Ltd. v. CCE [ 1989 (1) SCC 172 [LQ/SC/1988/469] : 1989 SCC(Tax) 64 : 1988 (S3) SCR 1]. An indicating system was one of the three parts of a weighbridge, namely, (1) a platform, (2) load cells, and (3) the indicating system. The Tribunal found that the appellant brought the three components together at site, fitted and assembled them so that they could work as one machine and, as such, the appellant manufactured a weighbridge. The question, therefore, was whether the activity carried out by the appellant, of assembling the three components of the weighbridge, brought into being a compete weighbridge, which had a distinct name, character or use. The argument of the appellant was that it was making only a part of the weighbridge, that is, the indicating system, and that alone was dutiable. It was held that the end product namely, the weighbridge, was a separate product which into being as a result of the endeavour and activity of the appellant, and the appellant must be held to have manufactured it. The appellants case that it was liable only for a component part and not the end products was, therefore, rejected.

8. Learned counsel for the Revenue submitted that if even a weighbridge was excisable, as held in the case of Narne Tulaman Manufacturers (P) Ltd. [ 1989 (1) SCC 172 [LQ/SC/1988/469] : 1989 SCC(Tax) 64 : 1988 (S3) SCR 1], so was a mono vertical crystallizer. The only argument on behalf of Narne Tulaman Manufacturers (P) Ltd. [ 1989 (1) SCC 172 [LQ/SC/1988/469] : 1989 SCC(Tax) 64 : 1988 (S3) SCR 1] was that it was liable to excise duty in respect of the indicating system that it manufactured and not the whole weighbridge. The contention that weighbridge were not goods within the meaning of the was not raised and no evidence in that behalf was brought on record. We cannot assume that weighbridges stand on the same footing as mono vertical crystallizers in that regard and hold that because weighbridges were held to be exigible to excise duty so must mono vertical crystallizers. A decision cannot be relied upon in support of a proposition that it did not decide.

9. Upon the material placed upon record and referred to above, we are in no doubt that the mono vertical crystallizers has to assembled, erected and attached to the earth by a foundation at the site of the sugar factory. It is not capable of being sold as it is, without anything more. As was stated by this Court in the case of Quality Steel Tubes (P) Ltd. [ 1995 (2) SCC 372 [LQ/SC/1994/1187] ] the erection and installation of a plant is not excisable. To so hold would, impermissibly, bring into the net of excise duty all manner of plants and installations.

10. The Tribunal took an unreasonable view of the evidence. It was the case of the appellants, not disputed by the Revenue, that mono vertical crystallizers were delivered to the customers in a knocked-down condition and had to be assembled and erected a the customers factory. Such assembly and erection was done either by the appellants or by the customer. Where it was done by the appellants, fabrication materials of the customer were used and the customer sent to the appellants debit notes in regard to their value. Where the assembly and erection was done by the customer, there was no occasion for it to send to the appellants a debit done. The fact that there was no debit note in respect of one customer could not reasonably have led the Tribunal to conclude that in the case of that customer complete mono vertical crystallizer had left the appellants factory and that, therefore, mono vertical crystallizers were marketable. The Tribunal ought to have remembered that the record showed that mono vertical crystallizers had, apart from assembly, to be erected and attached by foundations to the earth and, therefore, were not, in any event, marketable as they were.

11. Having regard to the material on record, we come to the conclusion that mono vertical crystallizers are not goods within the meaning of the and therefore, not exigible to excise duty

12. The appeal is allowed. The judgment and order under appeal is set aside.
13. There shall be no order as to costs.