Custom, Excise & Service Tax Tribunal
Cce, Indore (M.P.) vs M/S. Kinetic Motors Co. Ltd on 9 November, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:09.11.2015
Excise Appeal No.E/2991/2006-EX(DB) with
E/Cross/267/2006
[Arising out of common Order-in-Appeal No.IND-I/217/2006 dated 7.6.2006 passed by the Commissioner of Customs & Central Excise (Appeals-I), Indore (M.P.)]
CCE, Indore (M.P.) .Appellants
Vs.
M/s. Kinetic Motors Co. Ltd. Respondent
Appearance:
Rep. by Shri Govind Dixit, DR for the respondent. Rep. by none for the respondent. For approval and signature:
Honble Smt.Sulekha Beevi C.S. , Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities?
Coram: Honble Smt. Sulekha Beevi C.S., Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No.53476/2015 dated:09.11.2015 Per Sulekha Beevi C.S.:
The above appeal is filed by Revenue challenging the impugned order which set aside the duty demand raised on fabrication and erection of goods for making structures.
2. The respondents, M/s. Kinetic Honda Motors Ltd., as part of expansion of their factory entered into a rate contract with M/s. Gannon Dunkerley & Co. Ltd., Bombay on job work basis for fabrication and erection of the machine shed and warehouse shed. The raw materials like Iron/steel were provided by respondent and the contract was to be executed as per drawings & technical supervision of M/s.Gherzi Eastern Ltd., who were retained by the respondents. The goods like trusses, towers, columns, girders, purlins, etc. required for civil construction of the sheds were fabricated in the factory premises with the raw materials provided by respondents. Thereafter, these fabricated goods were carried to the location and fixed/erected to form the shed. The department entertained the view that respondent has manufactured the said excisable goods by engaging Gannon Dunkerley & Co. Ltd. on job work basis as hired labour. A show cause notice dated 22.06.1987 was issued to the respondents raising the above allegations. After adjudication, the order-in-original confirmed the duty and penalty. The respondents filed appeal before the Commissioner (Appeals) who vide the impugned order set aside the duty demand and penalty. Being aggrieved the Revenue is before us.
3. The learned DR submitted that the respondents are liable to pay duty as manufacturer of trusses, girders, column, etc. As per the contract, the respondents had provided rent free vacant land for storage of raw materials, land for labour quarters, provided raw materials like iron and steel free of cost and also free electric power for construction, fabrication etc. That these terms and conditions in the contract would go to show that the respondents have engaged M/s. Gannon Dunkerly & Co. Ltd. on job work basis as a hired labour. The said goods were fabricated first and then removed and carried to the construction site where they were erected. As per terms of contract, the job charges are to be paid on the weight of the raw materials supplied. That therefore the respondents were the real manufacturer of the said goods and are liable to pay duty.
4. When the case came up for regular hearing today as per published list none appeared for the respondent in spite of notice issued on 17.10.2015. Being an appeal of the year 2006, we proceed to dispose the appeal and cross objections after hearing the DR and perusal of the appeal records.
5. The Commissioner (Appeals) has examined in detail the contention raised by Revenue whether M/s. Gannon Dunkerley and Co. Ltd. can be considered to be a hired labourer. It may be correct that Trusses, Girders, Columns, etc are made by cutting and joining of channels, angles, plates, etc. which were supplied by the respondents free of cost. But M/s. Gannon Dunkerley & Co. Ltd., being a private limited company, in no stretch of imagination can be called as a hired labourer. The company was entrusted with the job work of making and erecting structures for the shed. The company employed their labourers for this purpose. The fabrication and making of these goods were done by M/s. Gannon Dunkerley. So the respondents cannot be said to be manufacturer of these goods by importing the status of hired labour on M/s. Gannon Dunkerley. Therefore, it cannot be said that respondents are manufacturer of the trusses, towers, column, girders, purlins, etc. The Commissioner (Appeals) has rightly set aside the duty demand against the respondents. We do not find any infirmity in the impugned order.
6. In the result, the appeal filed by Revenue is dismissed. The cross objections are also disposed accordingly.
[Operative portion already pronounced in the open court] ( Sulekha Beevi C.S. ) Member (Judicial) ( B. Ravichandran) Member (Technical) Ckp.
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