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TMI Blog2010 (10) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... at the respondent procured duty paid items like M.S. Sheets, plates from the market; that they hired the services of M/s. M.G. Enterprises for undertaking fabrication of what is described as "M.S. Storage tanks or M.S. vessel"; that they provided electric power and other materials and facilities required for fabrication; that the fabrication was undertaken by electric are welding; that the fabrication work was commenced during the month of March 98. It is the case of the department that the said activities resulted in emergence of M.S. Storage tank of 75,000 ltrs. capacity having length of 7.2 meters and diameter of 3.5 meters and that the said tank was kept on RCC foundation and fastened with bolts. 3.2 Therefore, the department felt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements of the Works Manager, who claimed that the said tank was fastened to RCC foundation in order to avoid vibrations, damages to the tank and that the said tank could be unfastened by removing the nuts. Therefore, the decision of the Commissioner (Appeals) treating the said goods as immovable and, hence, as not excisable is erroneous. 5.2 The contractor has been engaged only as a hired labourer and the entire activities has been carried out in the factory premises of the respondent with raw materials, electricity and other facilities being provided by the respondent. Under these circumstances the respondent alone should be treated as the manufacturer and the hired contractor cannot be treated as manufacturer of the said "M.S. tank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited and seized the goods; that the entire facility was incomplete and the same have not been taken provisional release after seizure; that the same was also not taken release after confiscation; and that the same is lying unutilized even as on date. In view of the above, the findings of the Commissioner (Appeals) that the said goods should be treated as incomplete and, therefore, not excisable is legally correct and does not warrant any interference. 6.3 He also defends the decision of the Commissioner (Appeals) that the respondent cannot be treated as the manufacturer of the impugned M.S. vessels. Even though the assembly at site was undertaken at the respondent's premises, the work was of a sophisticated nature and the actual assem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; Schrader Duncan Ltd., v. CCE, Mumbai-III, 2009-TOIL-2049-CESTAT-Mum. = 2010 (251) E.L.T. 290 (Tribunal) 7. We have carefully considered the submissions from both sides and perused the records. 8. The original authority has held that the M.S. tank, which was fabricated should be treated as excisable goods on the ground that the processes after which the said M.S. tank emerged amounted to manufacture. The Commissioner (Appeals) however accepted the contentions of the appellant that the said M.S. vessel was incomplete and held that the claim of the respondent that the said M.S. vessel was attached to the ground and hence, immovable has not been properly disproved by the department. In the grounds of appeal the department, no material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, we are of the view that there is no need to go into other aspects as to whether the respondent is the manufacturer or the contractor, who was hired for fabrication of the vessel should be treated as manufacturer and as to whether Notification No. 67/95 is applicable or not. Obviously, the goods should be excisable before any exemption notification can be considered. As we have held that excise duty is not attracted, the question of considering the exemption does not arise.
10. Therefore, the appeal of the department has no merits and deserves to be rejected and the same is accordingly rejected. Cross objection, which is merely in support of the order of the Commissioner (Appeals) is also disposed of.
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