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TMI Blog2002 (6) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... them at its Thane Factory in the execution of the contract together with bought out item. The items of machinery from Thane Factory were cleared on payment of appropriate excise duty. 3. The show cause notice issued to the appellants alleged that the appellants had fabricated and erected at the site of NFCL GI Ducts of 1000 Sq. Metres valued at Rs. 1,40,000/- falling under Chapter Sub-Heading No. 7326.90 of the Central Excise Tariff Act, 1985 and without obtaining licence as required under Central Excise law and removed the same without payment of central excise duty and thus contravening provisions of various rules of Central Excise Rules. Therefore, they were asked to explain as to why duty amounting to Rs. 24,150/- should not be demanded from them and why penalty should not be imposed. It was also alleged that the clearance of the ducts was done by suppressing the fact from the Excise Department and hence a notice was issued under the proviso to sub-section (1) of Section 11A of the Act. In reply to the show cause notice appellants submitted that no excisable product known as ducts comes into existence which can be bought and sold in the market; that the ducting is a system o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses we find no merit in the appeal of the Department and the same is accordingly dismissed. He therefore, prays that appeal may be allowed. 5. Ms. Ananya Ray, learned SDR appearing for Revenue submits that two issues are involved in this appeal. The first issue was whether air-conditioning ducts, which come into existence, are excisable and the second issue is whether Voltas are manufacturer of the said product. She submits that on merits the case has not been contested. Since it is covered against the unit by the Tribunal s decision in Blue Star reported in [1999 (107) E.L.T. 609]. On the issue whether M/s. Voltas are the manufacturer or M/s. Syed Hussain to whom they had given the work of fabrication etc.; that the contention of the appellant is that this issue is already settled in their favour under Tribunal s Order Nos. 1513/96, dated 6-8-96 and 1301/2001, dated 8-8-2001 [2002 (139) E.L.T. 223 (T)] wherein it has been held that the relationship between Voltas and sub-contractor is on principal to principal basis and not that of hired labourer and hence the sub-contractor was to be held as the manufacturer. 6. She also submits that facts in the present appeal are entirel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge Corporation v. C.C.E., Bhubaneswar. (iii) 2000 (122) E.L.T. 891 (T) - Agrico Engg. Works (India) Pvt. Ltd. v. C.C.E., Meerut Para 11. 8. Regarding reliance on the ratio of the judgment of the Supreme Court in the case of M/s. M.M. Khambhatwala reported in [1996 (84) E.L.T. 161] learned DR submits that this decision has been distinguished in the case of Maruti Udyog Ltd. and therefore, covers the present case squarely. Learned DR, therefore, prays that appeal may be rejected. 9. We have heard the rival submissions. We have also perused the evidence on record as also the case law. In so far as the formulation of the issues is concerned we note that on merits whether the air-conditioning ducts which come into existence are excisable or not. We note that this issue is covered against the appellant by the Tribunal s decision in the case of Blue Star cited above and therefore, was not contested also. 10. Regarding the applicability of the earlier decisions in the appellant s own case. We note that Revenue has contended that each contract is a separate one. In support of this contention they have stated that the admitted position was that ducting differs from contract to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not mean that the present contract is a contract of hired labour or M/s. Syed Hussain is a hired labour of M/s. Voltas Ltd. 14. It was also contended for Revenue that the appellant paid labour charges for the services to M/s. Syed Hussain and also the prices for certain angle fastened and other bought out equipments. The payment of labour charges or price of certain items do not make a contract as a labour contract. Thus we find that the contract between M/s. Voltas Ltd. and Syed Hussain is not a contract for labour but is a normal contract and that M/s. Syed Hussain in view of the stipulations in the price contract are not hired labour. 16. It was also contended for Revenue that the ratio of the judgment of the Tribunal in the case of Maruti Udyog Ltd. v CCE, Delhi reported in [2001 (134) E.L.T. 188] is applicable inasmuch as M/s. Voltas Ltd. supplied all the raw material, M/s. Voltas made available all the machines etc. to M/s. Syed Hussain and supervised the work. However, from the records, we find that M/s. Voltas supplied most of the item but also paid prices for certain angle fastened and other bought out items to M/s. Syed Hussain. We also note that in Para 8 of reply ..... X X X X Extracts X X X X X X X X Extracts X X X X
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