9911796707
TMI Blog2006 (6) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... Hingna Rd, Nagpur (ii) M/s. Orbit Industries (hereinafter as ORBIT), U-123, MIDC, Nagpur. They are manufacturers independently are engaged in the manufacture of such Towers and are registered with the Central Excise Department for such activity. 1.3 While placing the orders, the appellants week for delivery of Lighting Towers, complete in all respects, mentioning therein that :- (i) quality control testing will be done by the said manufacturers before removal from their works. (ii) Lighting Towers after due inspection will be directly dispatched to the consignees (i.e. parties who placed orders with the Trading Company) being the ultimate customers of the Appellants as the Trader. In short the said manufacturers were directed to dispatch fully manufactured Lighting Towers to ultimate customers on Appellants' account. The above said manufacturers procure/purchase the required materials and create the Tower and place the electrical components as per requirements. They affix stickers of "Aska" on such Towers, supplied to the appellants since they are also manufacturing goods for parties other than the Trading Company who are appellants herein. 1.4 The said Lighting Towers are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring both sides and going through the records, it is found that:- (a) while the appellants vehemently claimed that the activity carried out by the them is a trading activity. (b) it appears that Commissioner had:- (i) on the basis of the report received from jurisdictional Asstt. Comr. of the appellants' customer i.e. M/s. Neyveli Lignite Corpn. Ltd., it appeared that, appellants have manufactured and supplied the towers to the firms mentioned in Annexure - 3A to the notice. The reports received from jurisdictional Asstt. Commr. of the appellants' customers viz. M/s. L & T Hochtief Plant, Karwar; M/s. Hindustan Construction Company Ltd. Airport Authority of India, Amritsar & Thiruvanthapuram clarify that the said customers have confirmed that the lighting towers were received by them under the cover of invoices of the appellants, who have supplied the lighting towers and have raised the bills towards the same; (ii) the activities carried out by the appellants at its premises were found to be well covered under the definition of manufacture, as the appellants procure the orders from customers, then get the tower structures fabricated from the said manufacturers and appellants a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants to its customers at various locations and the Job Completion Certificate issued by customers are in the name of appellants. Therefore the certificate issued by a Chartered Engineer, relied by the appellants is not relevant & the affidavits are mere afterthought to mislead Dept; (viii) the contention of the appellants that the lighting towers being immovable items are not chargeable to Central Excise duty is not correct in view of the fact that item assembled at site and subsequently in stalled can easily be dismantled without application of considerable labour or without causing any substantial damage to its components and can be reassembled at a new site and the goods assembled/installed at site are capable of being sold or shifted as such after removal from the base since after fitting of the lights/illuminaries and installation of the Mast Lighting Control Panel the structure attains the properties of the Lighting Tower and, hence, the end use/function of goods is relevant for classification under heading 85.43; (ix) As no records furnished in respect of expenses incurred on bought out items to substantiate the appellants' claim for adjustment of credit of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Weavers by Shree Agency and thereafter woven textiles were being purchased, at a cost raised by the price of weaving to the cost of yarn sold by Shree Agencies. Therefore, the Apex Court, in the facts of that case, held Shree Agency as the manufacturer of the goods under dispute in that case. In the case before us, the appellant did not supply or sell or otherwise direct the job workers to procure the raw materials they only specify the quality or a specification of the Towers required to be manufactured, they therefore cannot be held to be a manufacturer, the Tribunal has already held one of such job workers viz. M/s. Telekrit Etectricals (Nagpur) Pvt. Ltd. to be a manufacturer of the said Towers, who is to discharge the duty of the Towers on total of the Lighting Tower including electrical fittings/bulbs etc. 7. The fact that the appellant had claimed before the Government companies, who are the buyers of the Towers that they manufacture the same or that they give warranty, cannot be a reason to conclude that they would be covered by the definition of manufacturer under the Central Excise Act, 1944, in view of their job workers being held to be an independent manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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