2018 (2) TMI 792 - AT - Central Excise

Appeal allowed against excise duty on subcontracted fabrication work

The Tribunal allowed the appeal filed by the appellant against the Order-in-Original for excise duty and penalties on fabrication activities, stating that ... Manufacture - Appellants carried out fabrication activity across all parts of the country and offered complete structure and execution and installation of the structure - whether the activity amounts to manufacture? - Held that: - In the present case, the appellants have no workshop to carry out the fabrication like cutting, welding, grinding etc. The appellants gave the work to a sub-contractor who assembles structure at the customer site. The structure constructed at the customer’s site has no marketability except to the customer concern. Similar view was observed by the Hon’ble Bombay High Court in the case of Shapoorji Pallonji [2005 (4) TMI 91 - HIGH COURT OF JUDICATURE AT BOMBAY] where it was observed that the cutting / drilling / welding steel channels angles, etc. and thereafter erecting, them does not amounts to excisable production. Appeal allowed - decided in favor of appellant Issues involved: Appeal against Order-in-Original dated 15/11/2007 for excise duty and penalties on fabrication activity from April 2001 to March 2005.Analysis:1. Background of the Case: The appellants engaged in fabrication activities of structures like skylights and glazing systems from metal sheets and glass curtain walls across the country. The Department demanded excise duty and penalties on the Director, leading to the appeal against the Order-in-Original.2. Contentions of the Appellant: The appellants argued that they do not manufacture materials at their premises; instead, they engage subcontractors for fabrication and installation. They relied on a Tribunal case where it was held that such activities do not attract excise duty, citing the case of Executive Engineer v. Commissioner of Central Excise.3. Arguments by the Appellant's Counsel: The appellant's counsel highlighted that the Commissioner relied on an earlier order and contended that the activity of fabricating structure does not amount to manufacturing, as per precedents upheld by the Supreme Court in similar cases.4. Respondent's Position: The Assistant Commissioner relied on the impugned order, emphasizing that no formal contract with labor existed, implying that manufacturing activity was performed by the appellants.5. Judgment on Merits: The Tribunal noted that the appellants did not have a workshop for fabrication but subcontracted the work to assemble structures at the customer site. Citing precedents like Executive Engineer v. CCE and Sunflag Iron & Steel v. ACCE, the Tribunal held that such activities did not amount to excisable production, thus setting aside the impugned order.6. Legal Precedents: The Tribunal referred to various cases, including those upheld by the Supreme Court, where similar activities were held not to attract excise duty, reinforcing the decision to allow the appeal filed by the appellant.This comprehensive analysis of the judgment highlights the key issues, arguments presented by both parties, legal precedents cited, and the ultimate decision of the Tribunal in favor of the appellant.