TMI Blog2016 (1) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... radeep Kumar Mittal, Advocate, for the Appellant. Shri Ranjan Khanna, Authorized Representative (DR), for the Respondent. ORDER [Order per : Ashok Jindal, Member (J)]. - The appellant is in appeal against the impugned order demanding duty along with interest and imposing penalty by the lower Authorities. 2. The facts of the case are that the appellant is engaged in a activity of undertakings Civil/Mechanical, turn-key projects at various sites of their customers. The appellant was awarded work order from M/s. National Thermal Power Corporation (NTPC) for supply of Low Pressure Piping Package comprising of Design, Engineering, Packing and Forwarding and supply of Feroze Gandhi Unchahar TPP - Unchahar Stage-II. The appellant, further, sub-contracted the work for Pipeline Packages to M/s. Varshney Engineers Erectors (in short VEE) through Minutes of Meeting dated 19-8-1996. As per the said contract, M/s. VEE was required for transportation, fabrication, erection of piping works start to finish till its final acceptance by the appellant and NTPC. On the work executed by M/s. VEE, no duty has been paid therefore proceedings were initiated against the appellant to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd scaffolding, etc.) testing equipment whatever may be required to adhere the schedule of completion of their portion of works including consumable, manpower, supervisors and engineers, etc., without any extra cost to RIL. RIL shall give 4 MG sets to M/s. VEE free of charge in working order. The same shall be maintained by M/s. VEE and returned in working order. Use of other heavy machinery like hydra and tractor trailor, etc., shall be given on O M charge basis. The O M charges for the following shall as mentioned. Hydra - ₹ 195/- Per hour Tractor/Trailor - ₹ 180/- Per hour. However, M/s. VEE shall maintain a log book, to be signed by RIL supervisor for the use of RIL s equipment. The charges shall be based on actual hours the machine is used by M/s. VEE. (7) Water and power for construction purposes as available from NTPC shall be supplied by RIL free of cost and further distribution whatever required shall be done by M/s. VEE. (8) Except for making payments against monthly work RA Bills. M/s. RIL will have no other liability to M/s. VEE o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions/time required for testing etc. and no compensation or extra shall be paid to them due to such disruption of works . Note : (i) RIL shall deduct income-tax and work contract/turnover from the payments made to M/s. VEE against their RA bills as per rules and laws applicable at NTPC UNCHAHAR site. 25. All taxes, duties levies and octroi, etc., are inclusive in schedule of rates (enclosed herewith) and no extra payment on any of these account shall be made to VEE. VEE shall take care of all the tax liabilities/formalities, etc., to bring all materials, equipments, tools and plants and to complete assigned works in all respects. The work contract tax/turnover tax as applicable shall be deducted from VEE bills for their portion of works done . 7. On going through the above, clauses of said Minutes of Meeting dated 19-8-1996, we find that nature of work executed by M/s. VEE is being a manufacturer/job worker of the appellant on principal to principal basis. In these circumstances, it cannot be said M/s. VEE is a labour contractor of the appellant and has fabricated the goods on behalf of the appellant. 8. A similar issue came up before this Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of compensation to individual labourers. The learned Advocate submits that from the above, it is clear that M/s. Raigad was not merely a labour supplier as held in the impugned order. 7.1 It is also contended that although as per the agreement in Clause 10, M/s. Raigad was required to discharge any Central taxes on the said goods and in turn the appellants have to reimburse the same. He further contended that as held by this Tribunal in the case of JCB India Ltd. - 2008 (12) S.T.R. 714 (Tri.) which was upheld by the Hon ble Apex Court as reported in 2010 (18) S.T.R. J110 wherein it has been held that by merely writing in an agreement that all central taxes would be payable by the appellants has no force in law inasmuch as no parties to a contract can contract themselves out of statutory provisions of law and any clause in an agreement contrary to law is not sustainable. 7.2 It is further contended that as per various statements recorded during the investigation, it is clear that the main raw materials (i.e. steel, tug engines, pipes, electrical material) were supplied by the appellant and M/s. Raigad supplied labour, tools, tackles, electrodes and electricity. It is also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the assess having paid wages to the house-hold ladies for manufacturing agarbatti, amlapodi and dhup etc. It was the contention of the assessee that the goods manufactured by such house-hold ladies though in their own premises must be taken as manufactured in the factory of the assessee. It is not in dispute that levy of excise duty is attracted on the incident of manufacture. Wherein in that case the Hon ble Apex Court held that the assessee cannot be considered as manufacturers of agarbatti, amiapodi and dhup etc. manufactured in the premises of house-hold ladies as described above without the aid of power. The undisputed facts are that the respondents supplied raw materials for rolling incense sticks etc. to outside manufacturers and paid wages to them on the basis of number of pieces manufactured. Such manufacture was without the aid of power. There was no supervision over the manufacture. Incense sticks were put in packets and such packets were sold from the premises of the house-hold ladies and they did not go to the factory premises of the assessee. No doubt the sale proceeds went to the respondents but that will not change the character of manufacture. If the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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