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TMI Blog2003 (3) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 1,10,91,848.36 with option to redeem the same on payment of fine of Rs. 22,00,000/- (Rupees Twenty-two lakhs). 2. After hearing the parties, the operative portion of the order allowing the appeal was pronounced in the open Court on 26-3-2003. 3. The brief facts of the case are that TISCO are one of the leadings steel manufacturers in the country. During the modernization Phase 3 programme in the Steel works, they set up a Hot strip Mill, a LD-2 Mill (steel making furnace) and a Slab casting shop in the said Steel work. The setting up of the mill involved inter alia, substantive structural steel work including fabrication and erection work at site. Structural work involving fabrication and erection at site as described in the various work orders were undertaken by five reputed contractors engaged by them on principal to principal basis on the terms and conditions specified in the said work orders. Proceedings were instituted against the appellants by issue of show cause notice alleging that TISCO during the period from July, 1993 to March, 1995 have manufactured 590.583 MTs of ladders and staircases, at their three mills namely Slab casting Shop LD-2 and Hot Strip Mills f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same is liable to duty or leviable to duty under the Act is on the department. This burden has not been discharged by the Revenue. (5) The Explanatory notes as contained in Heading No. 73.08 of the HSN, it would be seen that the heading covers complete or incomplete metal structures as well as parts thereof. On page No. 1108 of the HSN, it is stated that "For the purpose of this heading, these structures, are characterised by the fact that once they are put in position they remain in that position. They are usually made up from bars, rods, tubes, angles, shapes, sections, sheets, plates wide flats including so-called universal plates, hoop strip, forgings or castings by riveting, bolting, welding etc. "Such structures sometimes incorporate products of other heading such as panels of woven wire or expanded metal of heading 73.14." (6) The Commissioner has failed to appreciate the meaning as given in the HSN notes nor the meaning of the term "structure" as is known in common parlance. Even according to the Dictionary meaning, "Ladder" is a structure consisting of a series of bars or steps. Therefore, the definition of the term "Ladder" as set out by the Commissioner in para 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re all reputed contractors and are not hired labourers. The learned Counsel also cited the following case laws in support his plea for allowing the appeal (a) CCE, Nagpur v. Wainganga Sahkari S. Karkhana Ltd. reported in 2002 (142) E.L.T. 12 (S.C.) = 2002 (50) RLT 125 (SC) wherein it was held that Trusses, Columns and Purlines, fabricated at site are not manufactured items. (b) Agauta Sugar Chemicals v. CCE, Meerut reported in 2001 (138) E.L.T. 378 (T) = 2001 (43) RLT 779 wherein it was held that where supplier of parts assembled turbo generating set in appellants premises on job work basis, the job worker and not the appellants to be treated as manufacturer. (c) India Cements Ltd. v. Additional Commissioner of Central Excise, reported in 2000 (117) E.L.T. 131 wherein it was held that merely because the appellants supplied two basic raw materials, namely steel and cement to contractors and the items were produced at the project site which belonged to appellant, it does not follow that the appellants are the manufacturer. (d) Voltas Ltd v. CCE, Guntur reported in 2002 (144) E.L.T. 108 wherein it was held that relationship between appellant-contractor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use, and name, whether it be the result of one process or several processes manufacture takes place. He also referred to the judgment relied upon by the Commissioner in the case of Sirpur Paper Mills Ltd. v. CCE reported in 1998 (97) E.L.T. 3 (S.C.) wherein it has been held that just because the plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovable property as the paper making machinery is marketable as it can be dismantled and sold. Further, the Larger Bench judgment in the case of Maruti Udyog Limited v. CCE, reported in 2001 (134) E.L.T. 188 has held that fabrication of the items in dispute was not only carried out by the three different job workers within the factory premises of the appellants, but also on their shop floor itself and the appellants supplied all the raw materials for fabrication/repair/modification as well as the samples like electrodes, gas paint, primer, thinner etc. and the work was got carried out under the total control and supervision of the appellants. It was further held therein that in the eye of law the appellants are the manufacturers of bin, trollies and pallets of iron and steel. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axes on tools, tackles, equipment etc. brought in by the Contractor thus indicating the use of their own tools, tackles and equipment by the contractor for the purpose carrying out the work. Liability with regard to Provident Fund, insurance coverage under Workmen's Compensation Act, Accident policy, Fire and Burglary, Policy covering personnel and property damage was the responsibility of the Contractors. Further, all the contractors were also assessees under the Income-tax. From the above, it would be seen that the relationship between the Appellants and the Contractors were on principal to principal basis and not that of hired labourers. We note that the Tribunal in the case of India Cements Ltd. v. Additional Commissioner reported in 2000 (117) E.L.T. 131 has held that material supplier is not a manufacturer and merely because the appellants therein supplied two basic raw materials, viz. Steel and cement to contractors, and the items were produced at the project site, which belonged to the appellant, it does not follow that the appellants there are the manufacturers. Further in the case of Voltas Ltd v. CCE, Guntur reported in 2002 (144) E.L.T. 108 it was held that when the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this finding of the Commissioner that the staircases and ladders are not part of building structure inasmuch as it is common knowledge that every building if it has more than one floor, has to have ladders or stair case to climb up and climb down. Even in multi-storied building where "lift" is provided, stair case is necessarily provided and the staircase is very much an essential part of such building structures which are immovable property. Like-wise, where necessary, ladders are also provided and such ladders also become a part of the building and it also becomes an immovable property because these are permanently fitted to the structure by grouting or by fastening, welding, drilling etc. and have become an integral part of the building structure. Once they have become an integral part of the building, it can be safely held that these are immovable property. The Commissioner has held in para 4.12 that "Since TISCO was the owner of the goods, there was no occasion for sale and purchase. But this does not mean that the good was/are not capable of being bought and sold. Had they not manufactured the said goods in the above manner, they would have definitely bought the items from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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