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TMI Blog2002 (2) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... n them under Section 173Q of the Central Excises & Salt Act, 1944. Aggrieved by the above order Appeal Nos. E/349/93-B and E/68/93-B are filed by M/s. Punjab Project & Construction Co. Ltd. and M/s. NALCO respectively. 2. In the year 1985 the above mentioned parties had entered into a contract for fabrication and erection of Pot Shells by M/s. Punjab Project & Construction Co. Ltd. at the premises of M/s. NALCO. The work was completed in 1986. Show cause notice was then issued on 18-5-92 proposing to levy duty on the manufacture of Pot Shells. While confirming the demand the Collector took the view that Pot Shell is distinct from the raw materials used in the manufacture of the same, has distinct name, character and use and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on them for the alleged contraventions. 5. Before the adjudicating authority the appellant contended that Pot Shells fabricated by them are not excisable goods. It is submitted that there is total non-consideration of this important aspect in the impugned order. We find merit in the contention raised by the appellant. There is no proper consideration of the issue whether Pot Shells fabricated by the appellant are excisable goods, whether it is movable or immovable property etc. The learned Counsel for the appellant M/s. Punjab Project & Construction Co. Ltd. brought to our notice the instructions dated 15-1-2002 issued by the Central Board of Excise & Customs in exercise of its power under Section 37B of the Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to manufacture and the word 'manufacturer' shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture on his own account, but also any person who engages in their production or manufacture on his own account." According to the Collector it was M/s. Punjab Project & Construction Co. Ltd. who brought into existence by its own skill and labour a separate excisable commodity, namely, Pot Shells as per requirements of M/s. NALCO. Therefore, M/s. Punjab Project & Construction Co. Ltd. is the actual manufacturer of the excisable goods. Then he proceeds to observe that since the goods are manufactured by M/s. Punjab Project & Construction Co. Ltd. on behalf of M/s. NALCO, M/s. NALCO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that M/s. NALCO cannot be treated as a manufacturer even if ultimately in the remand proceedings the adjudicating authority comes to a conclusion that Pot Shells fabricated and erected by M/s. Punjab Project & Construction Co. Ltd. are excisable goods.
8. With the above clarification regarding the liability of M/s. NALCO to pay excise duty we set aside the impugned order and remand the matter to the adjudicating authority for fresh consideration on the question of excisability of Pot Shells fabricated and erected by M/s. Punjab Construction & Co. Ltd. Appeal No. E/349/93-B is allowed by remand and Appeal No. E/68/93-B stands allowed.
Operative part of the order already pronounced in the open Court on 28-2-2002. X X X X Extracts X X X X X X X X Extracts X X X X
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