Customs, Excise and Gold Tribunal - Tamil Nadu
Superintending Engineer, Tneb vs Commissioner Of Central Excise on 2 February, 1998
Equivalent citations: 1998(60)ECC449
ORDER
T.P. Nambiar, Member
1. The present appeal is filed against the order passed by the Collector of Central Excise, Madras in order No. 32/92 dated 30.11.92. In terms of that he demanded a duty of Rs. 1,24,416.34. It is the case of the department that it is the appellant who is the manufacturer of the RCC poles and they have cleared the same without payment of duty. But the appellant contended before the department during the personal hearing as well as in the reply filed that they are not the manufacturer of the poles and that the poles are being manufactured by the job worker and the job worker is to be treated as the manufacturer. The appellant also contended that they are entitled to the benefit of Notification 175/86 as they are part and parcel of the State Govt. But the adjudicating authority turned down their plea and held that they are the manufacturer and they are not entitled to the benefit of Notification 175/86.
2. Shri Dhanasekharan, learned Council appearing for the appellant contended before us that the finding of the adjudicating authority is not sustainable in law. He pointed out that it is the job worker who is the manufacturer of the RCC poles as the agreement entered into between the appellant and the job worker will substantiate the plea of the appellant.
3. We have heard Shri S. Murugandi, the learned DR in this respect. He stated that it is the appellant who is the manufacturer. He however, stated that the terms of the agreement between the TNEB and the Job worker were not discussed in the impugned order.
4. We have considered the submissions made before us. In order to come to a conclusion whether it is the appellant or the job worker who is the actual manufacturer it is necessary to have dealt with in detail the various clauses in the agreement entered into between the TNEB as well as the person who is said to be job worker. Such indepth examination is required to find out as to who is the manufacturer. The terms of the agreement were not examined by the adjudicating authority nor the same are before us. The terms of the agreement have to be gone into in detail and thereafter the matter should be decided in the light of the decision of the CEGAT in the case of Kerala State Electricity Board v. CCE as well as in the light of the decision of the Hon'ble Supreme Court reported in 75 ELT 18. We are therefore of the view that the impugned order is not sustainable in law and we set aside the same and remand the matter to the adjudicating authority for de novo adjudication. So far as the benefit of the notification is concerned, we leave the issue open to be considered in the light of the various decisions of the Tribunal and the High Court. In the result the appeal is allowed by remand for de novo adjudication after grating personal hearing to the appellant in accordance with law.
Pronounced and dictated in the open court.