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TMI Blog2001 (6) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Rules. 2. Shri M. Chandrashekharan, ld. Sr. Advocate, submitted that the petroleum products are stored in huge tanks having capacity varying from few Hundred Kilo litres to Thousands of Kilo litres depending upon the requirements; that they awarded the contracts for designing construction, procurement, erection, testing and commissioning of Bulk Oil Storage Depot at Sagar (Madhya Pradesh) to M/s. Engineering Project (India) Ltd. [EPIL]; that the contract comprised of fabrication, erection and installation of 9 M.S. Storage tanks the capacity of which varied from 510 Kls to 3060 Kls and the width and height varied between 10 Mtrs and 7 Mtrs to 14 Mtrs and 20 Mtrs respectively; that M/s. EPIL in turn entered into Works contract wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is complete, the tank becomes imbedded to earch, a part of immovable property and hence cannot be considered to be goods at all; that the pre-condition of marketability has not been satisfied by the Department in the present matter and the duty cannot, therefore, be charged on the tanks. Reliance was placed on the decision in the case of Dempo Engg. Services v. Collector of C.Ex. Customs, Goa [2000 (117) E.L.T. 328] wherein it was held that fabrication of steel structures and roofing systems by process of drilling, welding and fasting does not amount to manufacture. He further mentioned that the reliance of the adjudicating authority on the decision in the case of Sirpur Paper Mills Ltd. v. Collector [1998 (97) E.L.T. 3 (S.C.)] is enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sultant for design; procurement and construction of the Oil Storage Depot and they were neither manufacturers nor the owners of the fabricated tanks; that IOC reserved the right to terminate the contract in case the progress of the work was delayed; that IOC had supplied the machinery for fabrication of the impugned tanks and, accordingly, they are to be considered as manufacturers and the duty has to be demanded only from them. He further mentioned that out of the raw-material supplied during that period, the commodity has come into existence and as such duty under Central Excise Act becomes levied. On the question of limitation, the ld. DR contended that making of payment is not the criteria for considering that the product has been man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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