1. In both the appeals a common question of law and facts are involved hence they are taken up together for disposal as per law.
2. The question that arises for consideration is as to whether the appellants, an autonomous body of the Government of Tamil Nadu, are manufacturers or the independent Contractors who had received raw materials from Tamil Nadu Electricity Board and then manufactured the ACC poles are the manufacturers The Commissioner in the Revenue at para 8 in the order in original has upheld the contention that M/s.
TNEB is not the manufacturer since the RCC poles were manufactured by an independent contractor only.
3. The TNEB has challenged the order in Appeal No.151-158/92 CE (CBE) Dt. 17.6.92. The Appellant is one of the parties in Sl. No.1. The details of the appeals given by the commissioner (Appeals) in his order which refers to A./42/92 and the appellants therein is Superintending Engineer, Coimbatore South, Sultanpet and the refund amount involved is Rs.3,05,662.11 The parties' Appeals were dismissed on the ground that the RCC poles were manufactured by labour contracts and the relationship was not independent. This aspect has been challenged by the appellants on the ground that the appellant is not the manufacturer and the Contractor was an independent manufacturer.
4. The Ld. Counsel submits that the impugned order came up for consideration with four other matters and it was disposed of by final order No.243-247-2000 dt.15.2.2000. In that case the Tribunal has taken the view that the relationship between the appellant and contractor was on principal to principal basis. This view was expressed after examining the contract and applied the ratio of the earlier judgements in their own case. He further submits that this is applicable to the present case also. The Ld. DR reiterated the department's stand.
5. In view of the matter having already been decided vide final order No.243 - 247/2000 dt.15.12.2000 arising from the same impugned order in which it has clearly been held that the relationship between the Appellant and the Contractor was on principal to principal basis and the contractor was not a labour contractor. In view of the matter having been decided finally by the Tribunal the appellants appeal is allowed by respectfully following the ratio thereof.
6. In this case the Commissioner has confirmed duty demand of Rs.94,158.56 under the Proviso to Section 11 A(1) of the CEA. However, he has not imposed penalty. In this appeal the Revenue contends that the order be modified so as to include the special charges at 15% and contingency charges 5% in the assessable value of RCC poles and differential duty demanded accordingly be imposed.
7. Heard LD. DR in the matter. The LD. Counsel submits that TNEB have also filed an appeal challenging the findings that that they are the manufacturer. The Tribunal has taken a view that the assessee is not a manufacturer and the Contractor is the manufacturer. He files copies of the final order No.243 - 247/2000 dt.15.2.2000 and final order No.1660 - 1664/98 dt.21.8.98. He refers to earlier orders of the Bench also which has been passed in Final No.1289/96 dt.19.8.96 in which case the Bench has examined all the relevant documents and have clearly held that the assessee is not manufacturer and the Contractor is the manufacturer and the relationship is principal to principal basis. The Ld. Counsel submits in view of these judgements the question of adding various charges has not been attributed in the assessee appeal.
8. On a careful consideration, we notice that there is force in the submission made by the Ld. Counsel. We have perused the copies of the final orders filed passed by the Tribunal in TNEB'S case. The Tribunal after examining the contract have clearly come to the conclusion that the assessee is not the manufacturer and the duty demand cannot be confirmed on them. In view of the above stated position the Revenue's claim seeking for addition of various charges does not arise. As the assessee' appeal has already been allowed, the Revenue appeal is therefore rejected.