ORDER
S.L. Peeran, Member (J)
1. This appeal arises out of the order in original dated 26.7.91 passed by the Collector of Central Excise, Meerut by which he has confirmed the demand of duty of Rs. 22,14,570.50 under Rule 9(2) of the Central Excise, Rules, 1944 and also imposed a penalty of Rs. 50,000/- on the appellants.
2. The brief facts of the case are that the appellants are manufacturers of steel structurals and part thereof and the department has claimed the same to be goods falling under sub-heading 73.08 of the Central Excise Tariff and proceeded against them under the provisions of Rule 9(2) read with other rules on an allegation that the appellants have manufactured and clandestinely removed the goods without obtaining Central Excise license without payment of duty. The appellants had taken the plea that the activity of fabrication of steel structurals/testing/painstock assembly and erection at site (Power House) of the National Project Construction Corporation Ltd. (NHPC) does not amount to manufacture as such items are not goods for the purpose of excisability. This plea of the appellants was however, over ruled by the Collector by taking into consideration the other factors. The appellants in support of their plea cited the judgments in the case of Arun Industries Vishakapatnam v. CCE, reported in 1986 ELT 580, Steel Authority of India Ltd. v. CCE, reported in 1988 (86) ELT 316, Standrard Industrial Engg. Co. v. CCE, , Richardson Cruddas reported in 1988 (19) ECR 80. The learned Counsel also referred to the judgment of the Hon’ble Supreme Court in the case of Bhor Industries v. CCE, . He has also distinguished the judgment of the Tribunal. He also distinguished the judgment in the case of Name Tulaman Manufacturing Put. Ltd. v. CCE, . The learned” Counsel submitted that the issue is no longer res integra as the matter has been taken up before the Hon’ble Karnataka High Court and the Karnataka High Court has considered the matter and held that the such activity does not amount to manufacture, as in the case . He also referred to another order rendered in a Writ petition No. 23434/ 80 wherein similar issue was considered. He also submitted that the order rendered in the case of the appellants was taken up in appeal by the Collector before the Hon’ble Supreme Court in Civil Appeal Nos. 4961-64 of 1989 with Civil Appeal No. 2129/91 and the Supreme Court has dismissed the appeals by relying on their earlier judgment in the case of Mittal Engineering Works (P) Ltd. v. CCE, Meerut reported in 1986 (88) ELT 622 (SC). The learned Counsel referred to the final order rendered in their case vide final order No. E/328 to 330/97-B dated 21.2.97. He submitted that with the dismissal of the appeal of the department, the issue has been finally settled. He also referred to the judgment in the case of Name Tulaman holding that assembling of duty paid components of the weigh bridge amounts to manufacture but the Supreme Court in their subsequent judgment has clarified that this judgment did not deal with the aspect pertaining to immovable property. Judgment dealing with immovable property has been rendered by the Hon’ble Supreme Court in the case of Mittal Engineering Works (P) Ltd. (supra).
3. The learned SDR Shri V. Thyagaraj reiterated the department’s contention. He submitted that in the earlier case, the items were classified under TI 68 while in the present case, it is classified under sub-heading 7308 and in view of the item having been included under the new sub-heading therefore, the present case is distinguishable. The learned Counsel countered this argument and submitted that the High Court in the appellants’ own case v. Union of India reported in ILR 1997, KAR 1301 has dealt with this argument and negatived the contention of the department. He also referred to the judgment in the case wherein it was held that paper making machinery installed at site by use of bought out items amount to manufacture and they are also immovable property. The learned Counsel countered this argument also and submitted that paper making machinery has already come into existence while in the present case, machinery comes into existence in the nature of immovable property and the process in the present case does not amount to manufacture.
4. On consideration of the submissions made, we notice that the issue in the present case, is squarely covered by the judgment of the Hon’ble Supreme Court in their own case. We also take note of the fact that in the appellants’ own case, the Karnataka High Court has also given railing in their favour. We also take note of the fact that Supreme Court has rejected the contentions raised by the Department against the final order passed by the Tribunal by order dated 12.2.97. The learned SDR referred to the judgment in the case of Sirpur Paper Mills. We find that this judgment deals with the paper making machinery which had already been assembled while the present case deals with steel structural fabricated and taken to the site. In view of the above, we find no reason to depart from the earlier decision of the Tribunal & High Court and following the earlier judgments, we set aside the impugned order and allow the appeal.
Dictated and pronounced in the open Court.