2010 (10) TMI 456

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.....1 The relevant facts, in brief, are that the respondent procured duty paid items like M.S. Sheets, plates from the market; that they hired the services of M/s. M.G. Enterprises for undertaking fabrication of what is described as "M.S. Storage tanks or M.S. vessel"; that they provided electric power and other materials and facilities required for fabrication; that the fabrication was undertaken by electric are welding; that the fabrication work was commenced during the month of March 98. It is the case of the department that the said activities resulted in emergence of M.S. Storage tank of 75,000 ltrs. capacity having length of 7.2 meters and diameter of 3.5 meters and that the said tank was kept on RCC foundation and fastened with bol....

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....torage tank was moveable as could be seen from the statements of the Works Manager, who claimed that the said tank was fastened to RCC foundation in order to avoid vibrations, damages to the tank and that the said tank could be unfastened by removing the nuts. Therefore, the decision of the Commissioner (Appeals) treating the said goods as immovable and, hence, as not excisable is erroneous. 5.2 The contractor has been engaged only as a hired labourer and the entire activities has been carried out in the factory premises of the respondent with raw materials, electricity and other facilities being provided by the respondent. Under these circumstances the respondent alone should be treated as the manufacturer and the hired contractor ....

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....s yet to be used in the production process when the officers visited and seized the goods; that the entire facility was incomplete and the same have not been taken provisional release after seizure; that the same was also not taken release after confiscation; and that the same is lying unutilized even as on date. In view of the above, the findings of the Commissioner (Appeals) that the said goods should be treated as incomplete and, therefore, not excisable is legally correct and does not warrant any interference. 6.3 He also defends the decision of the Commissioner (Appeals) that the respondent cannot be treated as the manufacturer of the impugned M.S. vessels. Even though the assembly at site was undertaken at the respondent's pre....

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....pur, 1999 (33) RLT 129 (CEGAT) = 2000 (124) E.L.T. 643 (Tribunal) (h)    Schrader Duncan Ltd., v. CCE, Mumbai-III, 2009-TOIL-2049-CESTAT-Mum. = 2010 (251) E.L.T. 290 (Tribunal) 7. We have carefully considered the submissions from both sides and perused the records. 8. The original authority has held that the M.S. tank, which was fabricated should be treated as excisable goods on the ground that the processes after which the said M.S. tank emerged amounted to manufacture. The Commissioner (Appeals) however accepted the contentions of the appellant that the said M.S. vessel was incomplete and held that the claim of the respondent that the said M.S. vessel was attached to the ground and hence, immovable has not bee....