9911796707
TMI Blog2005 (12) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... ut by the appellant M/s. Binnay Limited for M/s. Baghpat Co-operative Sugar Mills Ltd., Bhaghpat. Under two contracts dated 5-8-98, the appellant was to design and prepare engineering layout, manufacture, procure and supply a boiling house with accessories and to erect and make it ready for commercial use. This work was for the expansion of Sugar Mill capacity. The work was completed by 1992. 4. In November 1994, the Commissioner of Central Excise issued a show cause notice to the appellant alleging evasion of Central Excise duty in regard to the goods manufactured for the expansion of work Para 3 of the show cause notice stated as follows : "M/s. Binny Ltd. (Engg. Div). Madras executed the said orders in the following manner :- (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. 7. The appellant failed before the Commissioner in the adjudication proceedings and the Commissioner confirmed the duty demand. Hence this appeal. 8. The contention of the learned Counsel is that the finding of the Commissioner that the Sugar Mill manufacturing machinery installed in the factory is liable to duty is not legal and tenable. It is being pointed out that sugar making machinery - Vacuum Pans, Crystallizes etc. come into existence only upon assembly and erection at site and that upon such assembly and erection, they had become permanent structure, which being not moveable are not goods and do not attract Central Excise duty. The learned Counsel has taken us to the picture of the machinery in question, so as to br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Senior Departmental Representative has also pointed out that while computing the duty liability, the Commissioner had given due deduction towards cost of erection etc., which activities are subsequent to manufacture. With regard fabrication carried out by other parties, the submission of the learned Senior Departmental Representative is that since those activities were carried out under the control of the appellant in accordance with the designs and raw materials supplied by the appellant, it was not open to the appellant to contend that it was not the manufacturer. He also emphasized that in the appellant's contract with M/s. Baghpat Co-Operative Sugar Mills, Baghpat it was specifically stated that the contract value included duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants' involvement with the fabrication work was to supply raw materials and designs and paying for the job work carried out. It is the job work carried out by the contractors which brought into existence fabricated items, be they excisable or not. It is well settled (O.R.G. Systems v. Collector o[ Central Excise, Vadodara and Britannia Biscuit Co. Ltd. v. C.C.E., Madras) that job worker is the manufacturer in a contract production and not the party who engages the job worker. The present duty demand is contrary to this well settled legal position and cannot be sustained. 14. In view of our findings above, we hold that the duty demand made in the impugned order is not sustainable. Accordingly, the impugned order is set aside and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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