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(c) As against that, a little later i.e. in January 1989, the Excise Department formed an opinion that the activities carried on by the 1st petitioner resulted into manufacture of excisable goods within the meaning of Section 3 of the Central Excise Act, 1944 and, therefore, a common show cause notice dated 20th January 1989 was given not merely to the 1st petitioner but to these four parties, namely, Bajaj Auto Ltd., Birla Erickson Tools Ltd., Anurang Engineering Pvt. Ltd., and Balkrishna Tyres Pvt. Ltd. The notice alleged that the 1st petitioner had manufactured excisable goods, namely, Structural Steel items, such as, Purlins trusses, north-light, girders, gantry girders, windows, doors, glassers, etc., which were covered by Item No. 68 of the erstwhile Central Excise Tariff prior to 1st March 1986 and were covered by Chapter Sub-heading 7308.90 with effect from 1st March 1986 under the Central Excise Tariff Act, 1985. The notice, therefore, called upon the petitioner to pay a duty at the rate of 12 % upto 28th February 1986 and 15% from 1st March 1986 on various items and special excise duty on certain items. The notice alleged that the 1st petitioner had manufactured excisable goods without obtaining the Central Excise Licence, cleared them without payment of duty and without accounting them in the statutory record, without a cover of Central Excise gate pass and without filing classification list, price list and without determining the duty. The petitioner and these four Companies and their Directors were called upon to explain as to why penal action under Section 9AA of the Act should not be initiated for various violations. The notice enclosed therewith firstly a table giving the total claim on the aforesaid counts which came to Rs. 1,39,79,193.17 Paise. The notice enclosed therewith the break up of this amount into various annexures. The annexures are with respect to these various separate items allegedly manufactured and which were supposed to be excisable under Section 3 of the Central Excise Act, 1944, such as, trusses, Purlins, etc. It is, however, material to note that all these annexures specifically state that these items were manufactured and removed without payment of duty by the petitioner having their site at M/s. Bajaj Auto Ltd., Waluj, and at the site of other respective customers. The notice, thereafter, had imputation of charges in annexure B and then the supporting documents were listed in annexure C.

(g) The 2nd respondent also noted that as far as steel doors and wooden doors are concerned, they were purchased from outside, but no evidence was produced to substantiate this claim.

(h) A plea was raised under Section 11A of the Central Excise Act by the 1st petitioner, that the notice itself was beyond the period of 6 months, as stipulated therein. This was turned down by the respondent No. 2. Lastly, the officer observed amongst other statements :

"When the company is paying Sales Tax on the goods manufactured, they are supposed to know their obligations under Central Excise Law. "

9. Mr. Kanade, therefore, submitted that from the facts of the case and from the record and from the show cause notice and its exhibits, it was clear that the 1st petitioner was permitted to set up a processing yard on the property of the concerned party where water and electricity was provided free and all necessary raw materials were brought by the party concerned. It is at that stage, that necessary fabrication, joining and processing of various inputs took place and at times those processed components were moved from that processing yard to the adjacent place where the factory was to be finally erected. The factories of the concerned parties, such as, Bajaj Auto Ltd., were to be set up on very large areas and obviously transportation was necessary and the transporters had to be paid. As far as the grievance that sales tax was paid of these products, Mr. Kanade, drew our attention to the fact that the sales tax was payable to the State Government under an Act known as Maharashtra Sales Tax on the Transfer of Property in goods involved in the Execution of Works Contracts Act, 1985. This Act has been subsequently repealed and replaced by the Maharashtra Sales Tax on the Transfer of property in goods involved in the Execution of Works Contracts (Re-enacted Act, 1989. He submitted that the payment of this sales tax on the goods involved in the execution of the works contract cannot lead to the inference that there was a manufacture of excisable good for the purposes of Section 3 of the Central Excise Act. Under this Section, duty of excise is leviable on excisable goods which are produced or manufactured. Here, as laid down by the Apex Court in the judgments referred to above, what is material is that the goods manufactured ought to be freely marketable. It implies a mobility in the goods and a free marketability. He relied upon the definition of goods under Section 2 Sub-Section 7 of the Sale of Goods Act, 1930, also to submit that "goods" means every kind of moveable property other than the items excluded under that definition. Assuming that any manufacturing process had taken place on the site of the contracting party, the manufacturing process did not result into production of freely moveable and marketable goods. It resulted into erection of a factory shed embedded into the soil meant only for one party and as per its specifications. It was not a case of a Company manufacturing goods in its own factory and then bringing them outside and selling to somebody else. He, therefore, submitted that in a situation like this, there was no question of the 1st petitioner being required to file the list or to obtain Central Excise Gate Pass and clear the goods after paying excise duty in the manufacturing yard. He submitted that if the approach of the respondent No. 2 that prior to being fitted into the soil, the components were moveable, is to be accepted, it would go entirely against the law laid down by the Apex Court in the catena of judgments which we have seen earlier. He, therefore, submitted that the impugned order deserves to be interfered with and set aside.

11. Mr. Godhamgaonkar thereafter relied upon another judgment of the Apex Court in the case of M/s. Indian Cable Company Ltd., Calcutta Vs. Collector of Central Excise, Calcutta and others , where the Apex Court has held that for an article being excisable, what is expected is that it must be capable of being sold but need not actually be marketed (Para 7 of the judgment). Mr. Godhamgaonkar submitted that the statements of the officers of the 1st petitioner / Company went against it. They were admissible under Section 14 of the Central Excise Act and from those statements itself, it was clear that what was manufactured was goods and they were chargeable to excise. Mr. Godhamgaonkar lastly relied upon a recent judgment of the Apex Court in the case of Triveni Engineering and Industries Ltd. and another Vs. Commissioner of Central Excise and another . That was a case of installation of turbo alternator and in para 11 of the judgment, the Apex Court has held that the process involved in fixing steam turbine and alternator and in coupling and aligning them in a specified manner to form a turbo alternator, a new commodity, is nothing but a manufacturing process. It is, however, material to note that even so, in the very judgment, in para 14, the Apex Court has held that what was manufactured was an immoveable property and it could not be termed as an excisable good. Then the Court observed at the end of that para, as follows :