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2. M/s PCA also buy what they call electric stove from M/s PCA Electricals and pack it together in one box with one cook-n-serve bowl, a coaster-cum-meat rack, glass lid, instructions-cum-recipe book, and sell these assembled goods as twink simmermatic cuisinette.

3. M/s PCA say that duty has been paid on the stove and the griller which went into the units which they sell viz. twink inframatic cuisinette and twink simmermatic cuisinette. After much correspondence etc., the central excise came to the conclusion that M/s PCA had manufactured new excisable goods when they packed the articles to produce the twink inframatic cuisinette, twink simmermatic cuisinette from the different components parts and accessories which they bought from different people and which they bring to Nangal Shama in order to put the units together. M/s PCA resisted this move of the central excise department mainly on the ground that their activity at Nangal Shama was not the manufacture defined in the Central Excises and Salt Act and could not be defined as a manufacture even in conventional terms. They merely brought different goods manufactured by different people together to present them to customers in a form that in convenient and attractive to users of the devices but without undertaking any activity that can be remotely described as a manufacturing activity. They refute the claim of the central excise that they fix heat control on the twink simmermatic cuisinette, by saying that they merely pasted the name plate to show the product as a product marketed by them.

9. There have been no clandestine removal of any of the products, because the activity of the PCA depot at Nangal Shama was well known to the central excise; there had been several visits by central excise officers to the depot; the activity of packing twink inframatic cuisinettes and twink simmermatic cuisinettes had been witnessed and watched by the central excise officers who knew in details the process which M/s PCA adopted in order to make the goods saleable under the new names.

10. A, great many arguments were presented on behalf of M/s PCA by the learned counsels and they were both long and voluminous and travelled the length and breadth of the case and examined every nook and cranny of the dispute. It is impossible to eloborate them all here: for example the learned counsel told the Bench how they were forced by the harassment of the central excise to approach the High Court of New Delhi and the High Court of Punjab, both of whom had to restrain the Collector in his headlong rush to penalise the party and to confiscate their goods. He spoke about the contradiction in the approach of the central excise department in first calling the item an electric appliance and then change it into an article falling under item 68; or forst calling one equipment a griller and then chaning it to a cooker. The Collector, said the counsel, changed the assessment of one article from item 33C to item 68 just in order to be able to take action against M/s PCA because if he had not done so he would have run into the problem of levying the same duty twice under item 33C. He even complained how they were not given a hearing by the Collector before the case was adjudicated and how they were penalised and duty demanded; but he said that he would not ask for a remand of the case to the Collector, because he did not know what lay in wait for them in a second round of proceedings. For our part we shall not pay too much attention to these details of the case but concentrate on the essentials so that we can get to the bottom of the matter without too many obfuscating minutiae. The learned counsel did submit that the learned counsel for department Mr. Sundra Rajan did not defend the case of the Collector but presented totally new arguments and these arguments were never the arguments of the Collector. He drew attention particularly to the judgement of the Supreme Court in McDowell and Company Limited v. Commercial Tax Officer 1985-5-ECC-259 decided on 17.4.1985 cited by the JDR. He said that this represented a conceptualisation of the case that was never in the view of the Collector when he proceeded and adjudicated the matter. The McDowell case was cited before the Tribunal to support the penalty, but, said the learned counsel for M/s PCA, the judgement of the Supreme Court does not justify imposition of the penalty. All that the judgement establishes is that in the circumstances stated in the case, tax must be paid as assessed by the tax collecting authorities, if such tax is leviable. McDowell cannot be cited by the department now to support the penalty imposed by the Collector.

29. The following cases were cited on behalf of M/s. PCA in support of their case :-

AIR 1982 SC 127 1983 ELT 681 T.S. Cycle 1984(18) ELT 14 Agro Industries 1979 ELT 3 243 1979 ELT J 158 1978 ELT J 18 1983 ELT J 1956 1983 ELT 179 1980 ELT 164 AIR 1963 SC 791.

These rulings concern themselves with whether packing or colouring was a manufacture or not. Not one of them deals with a case in which a manufacturer by careful and deliberate thought, works out a strategy by which his product or the goods that he puts on sale are assessed at a fraction of the value or escape assessment altogether in their recreation. The cases regarding packing not being a manufacture are true and correct. These were disputes only about packing of given goods; goods which could be subject to central excise duty, should have their packing added to the value of the goods which form the centre of dispute. The packing which the inframatic cuisinette and the simmermatic cuisinette underwent at Nangal Shama by M/s. PCA is not a packing that brought into the open the dispute in the case before us. This is a packing which has never figured in any case that we have seen; M/s. PCA calls it packing, and to all appearance, it is indeed a packing and it seems that some central excise officers fell in with it. The collection of goods and items that came to Nangal Shama Depot were assembled and packed in such a way that it created a veritable commodity that had never appeared before and one that had never been seen by central excise in the form it appeared at Nangal Shama. Packing perhaps it may be, but it is a packing with a difference, and what a difference it was. This packing is not the conventional one we usually see putting some goods in a box or a can and tying it up With straps or stappling it down, and then shipping it off to its destination. It is a packing that was meant to beguile by submerging in an appearance of packing the truth of the emergence of the units which would form new commodities and which should attract excise duty. The packing was not an innocent trade and business packing; after all, the individual units that came to Nangal Shama could themselves have been packed at their factory of origin and could have been marketed without the packing at Nangai Shama. It is not a packing that we see; we must look under this "packing" to see what led to or necessitated this "packing" at M/s. PCA's depot. There can be little doubt, if we look deeply under the surface, that this packing was merely a disguise, a dissembling, adopted with the sole purpose of escaping duty that would have been collected on the complete collection of each unit, the twink inframatic cuisinette and the twink simmermatic cuisinette. We shall further elaborate the meaning and the consequences of this action. But before that, we shall discuss a few other judgements quoted on behalf of M/s. PCA.

38. The acts of M/s PCA was on a comparable level. They arranged their affairs in such a way that they could present a case that what they sold is not a manufacture of theirs but of somebody else's. If the worst came to the worst, it would be the other people who might have to confront the central excise and not themselves. However that may be, they set out on a journey that took many a turn; but one which to a right mind, looks as nothing but a scheme to avoid tax, if not evaded it: we see it as the latter, because the goods presented by them, the inframatic cuisinette and the simmermatic cuisinette, are new goods which have ensemble values higher than they ever had before and which in their new ensemble, have never paid duty. It may be true that the goods were manufactured in the physical sense of manipulation and handling, elsewhere than at Nangal Shama, but the goods as presented by M/s PCA from Nangal Shama to the world were completed at their Nangal Shama depot. In this process of completion, they created and brought forth a new generation of goods not seen and not sold before, of which the other parts which they say had been manufactured by other people were only contributor - components and subsidiaries. In this new nature, in their total combination, some parts may be more important than others, while some merely serve or wait upon the more important members, to facilitate and to enhance their utility, virtues and, perhaps, range. The griller that M/s PCA received became a far more versatile equipment with the waffle plate and sandwich plate, all of which were made in order to fit into the griller cuisinette. The grill plate, the waffle plate and the sandwich plate all have evidently been designed and finished with the common cuisinette in view. Similarly the simmermatic is multiplied by the meatrack and the bowl in which to cook. With a bowl and a lid that fit just right, the cooking stove/cooker performs in a manner which cannot be achieved if an ordinary dish or bowl which does not fit is used. But the stove can cook with any bowl like all stoves; pointed out the learned counsel for M/s PCA; but the circumstances and conditions are not the same. The ensemble in this case is of items made to travel and work together: the stove is not meant to go alone nor is the bowl or the lid. The three were designed and packed together for teamwork and they were united at M/s PCA Nangal Shama depot to complete the process that brought out a finished product. It was at Nangal Shama that the two cuisinettes attained fulfilment.