ORDER
Gowri Shankar, Member (T).
1. Finolex Industries Ltd. the appellant is engaged in its factory at Ratnagiri, in the manufacture of polyvinyl chloride resin. The appellant receives ethylene one of the raw materials for the manufacture of this commodity liquified in bulk. The tankers carrying it tie up alongside the jetty belonging to the appellant extending about half a kilometres into the sea. On this jetty is located an unloading arm which is, we are told that, some kind of crane. By use of this unloading arm, the pipes laid on the jetty and connected to tanks containing ethylene in the tankers ethylene is transported through this flexible pipe to the pipe on the jetty which transports it to the tanks located kilometre and a half away. The question for consideration in these appeals is whether the parts of the moving arm that the appellant received and installed are capital goods, and whether the duty paid on these parts will be available to it as credit in terms of Rule 57Q (for part of the period) and Rule 57AA of the rules for some part of the period. In the common order impugned in these appeals (each of which relates to different periods) the Commissioner (Appeals) has confirmed the rejection by the Assistant Commissioner of the claim for credit on the ground that moving arm of which this part form part is located within the factory of the appellant. He has also found, in addition that the moving arm was not used in any manufacturing process as required by Section 2(e) of the act.
2. The ground plan which the appellant submitted in respect of its factory, in pursuance of the provision of Rule 174, included the jetty. It is not in dispute that the appellant is the owner of the entire land on which the factory premises in which the manufacture take place are situated, and that this land, extends to the coast and connects the part of the jetty and that the jetty extends from this land to the sea, as does the pipeline use to carry on the ethylene. It is also not in dispute that the jetty itself was constructed by the appellant and continues to be owned by it and maintained by it. The appellant owns, maintains and operates the moving arm. He further contends it is not a registration by the appropriate authority that is ultimately determinant of whether a particular premises of the factory or not, relying for this purpose upon the decisions of the Tribunal in Rampur Sugar Mills Ltd. v. CCE – 2001 (129) E.L.T. 73 and Modern Industries v. CCE – 2001 (136) E.L.T. 1355. He further contends that the jetty is adjacent and in fact originates in the appellants land and qualifies for being included within the term “factory” as defined in Section 2(e) of the Act which reads :
“Any premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on.”
3. The departmental representative, in addition to emphasising the point that has been relied upon by the Commissioner (Appeals), relies upon the decision of the Larger Bench in Vikas Industrial Gas v. CCE – 2000 (118) E.L.T. 257.
4. We do not find it possible to accept the view of the Commissioner (Appeals) in the order impugned before us, that merely because a jetty is extended into, it cannot be a factory or a part thereof. Section 2(e) of the Act defines a factory as “any premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily earned on.” The jetty under consideration is stated to be forty metres wide. If the appellant erected upon a jetty a shed in which it manufactured excisable goods, we do not think, the department could take the stand that since the manufacture took place upon the jetty, it did not take place in a factory. In our view, any premises in which excisable goods other than salt are manufactured or in which any manufacturing process connected with the production takes place would be a factory. It is not the department’s case that the jetty is not premises, and we find difficult to see that it should be so construed. A Bench of the Tribunal in fact found another piece of land on which the goods were being temporarily manufactured to be premises and thus a factory, relying upon the ratio of the judgment of the Supreme Court in Ardeshir H. Bhiwandiwala v. State of Bombay – AIR 1962 SC 29 holding that the term “premises” includes land. There is no legal requirement in the Central Excise law for a factory to be registered. It is also rendered irrelevant by virtue of the decision of the Tribunal in Rampur Sugar Mills v. CCE to the fact that the factory premises approved by the department did not specifically exclude this jetty. Approval of any premises is in any event is not a requirement for considering the factory and demanding duty on the goods manufactured therein. In that event, the person who manufacture and clear them without payment of duty by suppressing it would successfully claim that since the premises in which the manufacturing of the goods were not manufactured in a factory. In other words, it would be safe to say that the fact of manufacturing the premises would determine the factory and not the contrary.
5. The facts before us are clear that the entire land up to on which the foot of the jetty is situated belongs to the appellant and houses the factory in which it manufacture polyvinyl chloride resin. The Larger Bench of the Tribunal in its decision in Vikas Industrial Gas v. CCE – 2000 (118) E.L.T. 257 declined to consider a pump used by the appellant before it located next to a reservoir and used to pump water through a pipeline from the reservoir of the factory to be part of that factory on the ground that it was not located within the factory precincts. The decision however does not make it clear whether the pumphouse stood on the appellant’s land. We have already recorded that the jetty was owned by the appellant and exclusively used by it.
6. The appellant could not have owned the land on which the major part of the jetty stood. It did own the land on which landward end of the jetty rested. The Commissioner (Appeals) records that the jetty was also used to transport liquified petroleum gas unloaded at the jetty and transported to a storage place on account of Bharat Petroleum Corporation. The explanation that the Counsel for the appellant tenders is that the tank was leased to within the appellant’s own factory erected by it and leased to Bharat Petroleum Corporation Ltd. and that company was charged by the appellant for handling of the liquified petroleum gas answers this point satisfactorily.
7. On these facts, therefore, it is reasonable to conclude that the jetty was part of the premises. Since within the premises as a whole manufacturing activity was being earned on, the jetty would be covered by the definition of Section 2(e) of the Act. Therefore, the parts of the moving arm would be eligible for the purpose of this rule. The appellant was therefore entitled to take credit.
8. Appeals allowed.