S.K. Bhatnagar, Member (T)

1. Learned Counsel submits that the main issue involved herein is manufacture of various steel structures such as columns, beams, gantry, trusses, girders, purlins, section of windows (shutters) and fencing angles etc. The adjudicating authority has held that these goods fall under sub-heading 7308.90 whereas the contention of the applicant is that these are not goods because they come into existence only when they are incorporated into factory's structure. Iron and steel products are supplied by them to one M/s. Mechel Engineers Works, Indore for manufacture of said steel structures and for erection of the same in the vacant land i.e. the project area of the factory. They had also been supplying electrodes, gases for welding to the said engineering works free of cost who in turn fabricate the steel structures within the factory. It is also seen from the impugned order that as per the statement of Shri R.K. Patwa, Proprietor of M/s. Mechel Engineering Works, whole work of fabrication and erection was to be done as per the notice's instruction only and that he had employed 20 labourers for the said job and all the labourers were insured by the noticee.

2. Learned Advocate for the applicant has urged that manufacture of steel structures has been held by the Tribunal in a series of judgments as not liable to duty because they are not goods. He relies for this proposition on (i) MANU/CE/0100/1986 : 1986 (25) ELT 580 [Anina Industries, Visakhapatnam v. Collector of Central Excise] and (ii) MANU/CE/0141/1988 : 1988 (36) ELT 316 [Steel Authority of India v. Collector of Central Excise]. The learned Advocate further submits that a large number of decisions given in the impugned order in para 3.3. thereof were cited before the learned adjudicating authority but he has set aside all those citations by a single sentence that those judgments are not relevant here since they related to the erstwhile Tariff Item 68 of CET. According to him, the Collector has held that the goods are classifiable under sub-heading No. 7308.90 although there is no difference whatsoever in the scope of erstwhile Tariff Item 68 or the present sub-heading 7308.90 in as much as both the items related to goods not elsewhere specified/others. Only the scope of sub-heading 7308.90 is narrower than that of erstwhile Tariff Item 68 because subheading 7308.90 is only in respect of other articles of steel not specified in the heading 7308 whereas erstwhile Tariff Item 68 encompassed all other goods which were not mentioned in Tariff Items 1 to 67 of the old Central Excise Tariff. No change in definition of 'manufacture' as given in Section 2(f) of the Central Excises and Salt Act, 1944 has taken place. Therefore, there is no reason whatsoever that the judgments which were applicable to Tariff Item 68 so far as the structurals are concerned, should not be made applicable to the new Tariff so long as there is no specific mention of structurals in the Tariff itself for the purpose of excitability. He also gave a list of large number of decisions which held that the raw materials supplier is not a manufacturer. The actual manufacturer is one, according to the learned Advocate, who actually manufactures/fabricates the goods. The demand on the applicant is therefore totally unwarranted and it should have been directed if at all against M/s. Mechel Engineers Works, according to the learned advocate. Some of the judgments given in the list are (1) 1988 (38) ELT 535 SC (at page 557), (Collector of Central Excise, Ahmedabad v. VXL India Ltd.).

3. Learned D.R. urged that the citations to the effect that structurals are not 'goods' and therefore, are not excisable is no longer good law in as much as a subsequent judgment of the Tribunal reported in MANU/CE/0256/1988 : 1988 (38) ELT 176 (Richardson and Cnuddas (1972) Ltd. v. Collector of Central Excise) has since been delivered. This judgment of the Tribunal takes into account the judgment of the Tribunal