ADDL. CHIEF ENGG. CHIDAMBARANAR & ORS. Vs. CCE

JUDGEMENT

(1.) IN all these appeals, common question of law and facts are involved, hence they are taken up together for disposal as per tow. The appellant is State Electricity Board and represented by individual Engineers heading the particular circle. The appellants had given contract after floating tenders with specific terms and conditions for manufacture of RCC poles. The demands were raised against the appellants for the manufacture of such RCC poles. In one matter, Appeal No. E/2305/98(92) the appellants had deposited the demands and asked for refund on the ground that the appellants are not the manufacturers and the manufacturer is the contractor and as the demands had been made against them, therefore, the duty is required to be refunded. In the Order -in -Original the Assistant Commissioner has taken a view that the Contractor is only coolie, as the appellants had supplied cement, water and electricity and therefore, the appellants are manufacturers and hence, rejected their refund claim. In Appeal E/2310/98(92), the issue pertains to refund of the duty paid by the appellants. In appeal E/2312/98(92), the claim was rejected on the ground that it is time barred, as the refund application has been received after a lapse of 79 days and in terms of Section 11B of Central Excise Act, the claim is barred by time. In Appeal E/2309/98(92) also the appellants lodged a claim for refund on the ground that they are not manufacturers but it is the contractor who is the manufacturer. This ground was also rejected as in all other appeals.

(2.) THE learned counsel submits that in so far as the merit is concerned, the appellants are not arguing that the issue was decided against them by the Hon'ble Supreme Court. However, it is his contention that the demands cannot be confirmed on the appellants as the relationship between the appellants and the contractor is on the basis of principal to principal and the contractor is not an employee/coolie or wage labour contract. He submits that this plea has been accepted by the Tribunal in their own case and in those appeals, the Tribunal has examined the contract and has come to a conclusion that the relationship between the appellants and the contractor is on principal to principal basis and has held that the demands against the appellants are not sustainable and on that ground the refund has been granted. He files a copy of Final Order No. 324 and 325/99 dated 11.2.1999, which in turn relied on the earlier order of Tribunal in Order No. 2542/97 dated 23.9.1997, which had in turn followed the earlier order of the Tribunal in Order No. 1984 -1988/97 dated 30.7.1997. He also referred to Final Order No. 1289/96 dated 19.8.1996 which had also followed earlier Final Order No. 1660 -1664/98 dated 21.8.1998. In effect he submits that the demands which are within the time are required to be accepted and refund may be ordered in all the matters.

(3.) ON careful consideration of the submissions, we take up the appeal No. E/2312/98(92) which is against the dismissal of refund claim on the ground of time bar. We have perused the Order -in -Appeal No. 86/92 dated 28.4.1992 passed by the Commissioner (Appeals), Trichy, wherein he has noted that the refund claim for Rs. 53,868.30 has been filed after a lapse of 79 days and the refund claim is time barred. We agree with the findings of the Commissioner (Appeals) and we have perused the grounds of appeal and noticed that no grounds have been urged by the appellants on the time bar issue and it is not stated by the appellants that the duty has been paid under protest and therefore, the Assistant Commissioner's order on time bar is sustainable and confirming the Order -in -Appeal, the Appeal No. E/2312/98(92) is rejected. As regards the other appeals Nos. E/2305/98(92), E/2309/98(92) and E/2310/98(92), the claim for refund on the ground that the appellants are not the manufacturers and the duty is therefore, required to be refunded is sustainable for the reason being that the appellants in their own case, the issue has been gone into great detail by the Tribunal and the Tribunal has scrutinised and examined the contract and has come to a conclusion that the relationship between the appellants and contractor is principal to principal basis and not that of coolie as held by the authorities below. We have examined the contract which is annexed in these appeals. On a careful consideration of all the terms, we notice mat it is not a labour contract but a contract for manufacture of RCC poles on principal to principal basis. The supplier of raw material cannot become manufacturer as already held in several cases. The entire manufacturing activity in terms of the contract is carried out by the contractor, therefore, the view already expressed by the Tribunal, in the appellants own case, in terms of the Final Orders already cited above is applicable to the facts of the present case. Applying the said ratio, it is concluded that the appellants are not manufacturers but the contractors are manufacturers and hence the duty paid by them and the refund claim filed by them is sustainable and therefore, these appeals i.e. E/2305/98(92), E/2309/98(92) and E/2310/98(92) are allowed with consequential relief, if any, as per law.