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TMI Blog2006 (6) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Towers' in various places all over India are obtained and thereafter orders placed with other companies, who are manufacturers of 'Lighting Towers', which are :- (i) M/s. Telekrik Electricals (hereinafter as TEL.EKRIK), W-47, MIDC, Hingna Rd, Nagpur (ii) M/s. Orbit Industries (hereinafter as ORBIT), U-123, MIDC, Nagpur. They are manufacturers independently are engaged in the manufacture of such Towers and are registered with the Central Excise Department for such activity. 1.3 While placing the orders, the appellants week for delivery of Lighting Towers, complete in all respects, mentioning therein that :- (i) quality control testing will be done by the said manufacturers before removal from their works. (ii) Lighting Towers after due inspection will be directly dispatched to the consignees (i.e. parties who placed orders with the Trading Company) being the ultimate customers of the Appellants as the Trader. In short the said manufacturers were directed to dispatch fully manufactured Lighting Towers to ultimate customers on Appellants' account. The above said manufacturers procure/purchase the required materials and create the Tower and place the electrical component ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11AB and penalty, on the Managing Director, of Rs. l,00,000/- under 26 of erstwhile Central Excise Rules, 2001 and Rule 210A of the Central Excise Rules, 1944 read with Section 38A of Central Excise Act, 1944. Hence these appeals. 3. After hearing both sides and going through the records, it is found that:- (a) while the appellants vehemently claimed that the activity carried out by the them is a trading activity. (b) it appears that Commissioner had:- (i) on the basis of the report received from jurisdictional Asstt. Comr. of the appellants' customer i.e. M/s. Neyveli Lignite Corpn. Ltd., it appeared that, appellants have manufactured and supplied the towers to the firms mentioned in Annexure - 3A to the notice. The reports received from jurisdictional Asstt. Commr. of the appellants' customers viz. M/s. L T Hochtief Plant, Karwar; M/s. Hindustan Construction Company Ltd. Airport Authority of India, Amritsar Thiruvanthapuram clarify that the said customers have confirmed that the lighting towers were received by them under the cover of invoices of the appellants, who have supplied the lighting towers and have raised the bills towards the same; (ii) the activities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pection report for each Lighting Tower at K-21, MIDC, Nagpur, which clearly indicates that the lighting towers have come into existence and thus manufactured at K-21, MIDC, Nagpur. Appellants are manufacturers, considering the warranty given by the appellants to its customers at various locations and the Job Completion Certificate issued by customers are in the name of appellants. Therefore the certificate issued by a Chartered Engineer, relied by the appellants is not relevant the affidavits are mere afterthought to mislead Dept; (viii) the contention of the appellants that the lighting towers being immovable items are not chargeable to Central Excise duty is not correct in view of the fact that item assembled at site and subsequently in stalled can easily be dismantled without application of considerable labour or without causing any substantial damage to its components and can be reassembled at a new site and the goods assembled/installed at site are capable of being sold or shifted as such after removal from the base since after fitting of the lights/illuminaries and installation of the Mast Lighting Control Panel the structure attains the properties of the Lighting Tower a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessee under the Central Excise Act, 1944. The reliance of the Commissioner on the decision of Shree Agency - 1977 (1) E.L.T. (J 168) (S.C.) to call the Traders herein as the manufacturer cannot be upheld, as in that case yarn had been sold to the Weavers by Shree Agency and thereafter woven textiles were being purchased, at a cost raised by the price of weaving to the cost of yarn sold by Shree Agencies. Therefore, the Apex Court, in the facts of that case, held Shree Agency as the manufacturer of the goods under dispute in that case. In the case before us, the appellant did not supply or sell or otherwise direct the job workers to procure the raw materials they only specify the quality or a specification of the Towers required to be manufactured, they therefore cannot be held to be a manufacturer, the Tribunal has already held one of such job workers viz. M/s. Telekrit Etectricals (Nagpur) Pvt. Ltd. to be a manufacturer of the said Towers, who is to discharge the duty of the Towers on total of the Lighting Tower including electrical fittings/bulbs etc. 7. The fact that the appellant had claimed before the Government companies, who are the buyers of the Towers that they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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