ORDER
V.K. Agrawal, Member (T)
1. The issue involved in this appeal filed by M/s. Basti Sugar Mills Co. Ltd. is whether the overhead Crane unloader has been manufactured by them and whether it is excisable goods.
2. Shri P.K. Sahu, ld. Counsel submitted that the Appellants had ordered complete overhead unloader with M/s. Mahashakthi Machines Pvt. Ltd. who had charged them separately for the various parts and labour charges; that the crane was installed and erected in their premises by M/s. Mahashakthi Machines Pvt. Ltd.; that no evidence was brought on record by the Revenue that after purchasing the parts of the crane, it was installed and erected by the Appellants. He further submitted that after erection and installation of the crane it becomes immovable property as it cannot be as such brought to the market for being bought and sold. It has to be dismantled and then again the parts have to be assembled and installed. His contention is that if the process of assembly has been considered to be manufactured and second time it has to be manufactured then it is not a marketable commodity. In support of his contention, the crane is immovable property, he relied upon the judgment of the Supreme Court in the case of Ram Singh & Sons Engineering Works v. Commissioner of Sales Tax -1979 (STC) 195 (S.C.). He also relied upon the decision of the Tribunal in the case of Elecon Engineering Co. Ltd. v. C.C.E. -1999 (31) RLT (5) (T).
3. Shri Jagdish Singh, ld. DR submitted that the duty has been paid on certain parts of the crane valued at Rs. 2,50,000/- and therefore on the remaining parts also and the labour charges the duty should have been paid by the Appellants. He further mentioned that as per the order dated 5-8-1991 placed by the appellants it is clear that they had paid labour charges to M/s. Mahashakthi Machines Pvt. Ltd. and therefore they are the manufacture of the crane. Finally he submitted that the crane is not a immovable property at all as it is only bolted to the earth with the help of nuts and bolts.
4. We have considered the submissions made by both the sides. It is seen from the order placed by the Appellants and the Bill raised by M/s. Mahasakthi Machines Pvt. Ltd. that they had supplied all the parts and also charged labour charges for assembling of crane unloader in the factory premises of the Appellants. The Department has not brought of any evidence on record to show that M/s. Mahashakthi Machines Pvt. Ltd. were hired labourers of the Appellants so as to treat them as manufacturer under Section 2(f) of the Central Excise Act. The Appellants have contended that the crane was supplied by M/s. Mahasakthi Machine P. Ltd. to whom no show cause notice has been issued by the Department. We, therefore, without going into the question of movable or immovable nature of the crane, hold that the appellants were not manufacturer of overhead crane unloader and as such are not liable to pay any Central Excise Duty. Accordingly we allow the appeal.