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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 ..... - E/3028/2003 - A/339-340/2010-WZB/C-II/EB - Dated:- 12-10-2010 - S/Shri P.G. Chacko, M. Veeraiyan, JJ. REPRESENTED BY : Shri S.S. Katiyar, SDR, for the Appellant. Shri V.S. Sejpal, Advocate, for the Respondent. [Order per : M. Veeraiyan, Member (T)]. - This appeal is by the department and is against the order of the Commissioner (Appeals) No. PD/43 to 44/Th-II/2003 dated 30-6-2003. Cross objection No. CO-239/04 is connected to this appeal. 2.Heard both sides extensively. 3.1 The relevant facts, in brief, are that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r holding as above, he set aside the order of the original authority. 4. Hence, the department is in appeal. Cross objection by the party is basically submissions in support of the decision of the Commissioner (Appeals) and does not claim any benefits other than what was extended by the Commissioner (Appeals). 5.1 The learned SDR submits that the respondent has engaged hired labourer and got the M.S. storage tank manufactured in their factory premises. The said M.S. storage tank was moveable as could be seen from the statements 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 The learned Advocate, at the outset, submits that so-called M.S. tank is a specialized equipment; that the same consisted of three different compartments, which are interconnected and fitted with a pump; that it was meant to be used in the manufacture of thinner and industrial solvents, which required processes such as mixing either by agitation or air blowing. 6.2 He also submits that the said M.S. vessel was not complete as the same was yet to be used in the production process when the officers visited 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbai-VII, 2001 (43) RLT 614 (CEGAT-Mum.) = 2001 (137) E.L.T. 841 (Tribunal) (e) Addison Paints Chemicals Ltd. v. CCE, Chennai, 1999 (110) E.L.T. 951 (Tri.) (f) Ayes Dyes Chemicals v. CCE, Chennai, 2000 (116) E.L.T. 524 (Tri.) (g) J.K. Synthetics Ltd. v. CCE, Jaipur, 1999 (33) RLT 129 (CEGAT) = 2000 (124) E.L.T. 643 (Tribunal) (h) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted. The Commissioner (Appeals) was right in holding that the department has failed to prove that the goods were complete and that they were ready for use. 9. As we are in agreement with the findings of the Commissioner (Appeals) that the goods have not reached the excisable stage and at any rate there is no removal to attract liability of 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 exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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