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TMI Blog2017 (11) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT, MUMBAI] held that said activity does not amount to manufacture - appeal allowed - decided in favor of appellant. - E/74/08-MUM - A/90348/14/EB - Dated:- 31-10-2017 - Mr Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri. Rajesh Ostwal, Advocate for the Appellants Shri. N. N. Prabhudesai, Superintendent (A.R.) for the Respondent ORDER Per : Raju The Appellant M/s. Tata Motors Ltd are in appeal against confirmation of demand and imposition of penalty in respect of manufacture of various articles of iron steel. 2. Ld. Counsel for the appellant argued that five show cause notices were issued by Revenue alleging that appellant alongwith their Contractor namely, M/s. Shapoorjee Pallonjee Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion workshop MPSEB Vs. Commissioner of C. Ex. Bhopal[2004(178) ELT 440(Tri. Del.)] to assert that the said activity does not amount to manufacture. He pointed out that said decision was approved by Hon ble Apex Court as reported in [2015(317)ELT A160(A.P)]. Ld. Counsel also relies upon the decision in case of Alumayer India Pvt Ltd Vs. Commissioner of Central Excise, Mumbai[A/88110-88111/17/EB dated2-3-2017 wherein decision this Tribunal in case of Mahindra Mahindra has been distinguished. He further argued that in their own case identical issue, Tribunal has vide order reported in [2006(202)ELT 812] held that such activity would not amount to manufacture. In the said Tribunal order it differentiated the facts from the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al user or enjoyment it is not immovable property. As laid down by this Court, in the case of Sunflag Iron and Steel Co. Ltd., the assessee carried out activity which was in pari materia with that of the activity of the present petitioners. In the said case also, the assessee had entered into an agreement for supply, fabrication and erection of structural steels and cladding works of Rolling Mills and steel melting shop (a shed) in the project area. For the purpose of carrying out the fabrication and erection of structural engineering works, the assessee used to supply duty paid material, which consisted of iron and steel products like plates, angles, channels, rods and strips as per required specifications. The contractor used to fabricate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done at factory nor were the goods saleable or capable of being brought to the market for being sold. We further notice that in both the cases the fabrication was with the immediate purpose of using the factory shed or steel cold rolling mill which were being and there was never an intention to sell it in the market. These facts, in our judgment, make it amply clear that the material fabricated at the site by the contractors in both the cases were not exigible to excise duty under Section 3 of the Act. Hence, the orders in both the cases need to be set aside in exercise of writ jurisdiction. The aforesaid view of the Division Bench in Sunflag Iron and Steel Co. Ltd. came to be followed by another Bench of this Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31-12-1998 as regard the activity under, he has observed as follows: As regards the merits of the case I find that it is not in dispute that the assessee had brought duty paid iron and steel materials viz. Angeles, channels, beams, bars, rods, etc. which were adapted at the construction site itself for use in the integral process of contruction of factoyr shed as column, trusses, purlins, etc. through the process such as cutting, drilling, welding, riveting. Upon physical inspection of the factory sheds since constructed and a few photographs of the in-progress factory block work in the premises of M/s. TELCO, my observations are as under: i) The construction activity of factory sheds involves usage of various iron and steel prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pair work etc. As such the articles described in the show cause notices to be known as girders, purlines, trusses, etc. come into existence, once they become part of the immovable structure of the factory shed. From the activity, it is apparent that the facts of the present case are identical to the facts of the Shapporji Pallonji Co.(supra) inasmuch as no structure element come into existence before being fixed to immovable property. The case laws relied by the Revenue are mainly in the nature of cases where structure steel items came into existence before the same become part of the immovable structure. The facts of the case are therefore clearly distinguishable. In this circumstances relying on the decision in case of Shapporj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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