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2005 (9) TMI 191 - AT - Central ExciseExcisability - duty demands - determination of levy of duty - BASE Transceiver Station (BTS) - Whether movable & the installation activity at site would amount to manufacture ? - HELD THAT:- The extract from the show cause notice clearly shows that the show cause notice had proposed to hold the entire BTS/BSC site (which is a prefabricated building/shelter in which the transceiver unit microwave equipments along with the other peripheral equipments are housed), along with the tower, as the transmission apparatus of Heading 8525. The activity of the building the house/room, installation of the aforesaid equipments and connecting of these equipments has been treated in the show cause notice as the process amounting to manufacture of such transmission apparatus. These sub system by themselves cannot perform on there own Transmission process required for Mobile cells without the Networking required. The reliance on Boards instruction is misplaced. BTS/BSC site are not marketable for another reason also. For installation of every BTS/BSC, License from WPC/SACFA a wing of Department of Telecommunications, Government of India has to be obtained, which invariably is user specific and site specific, meaning thereby if one wishes to sell the site to another user, it is not permissible under law, as the approval granted by the aforesaid authority for the frequency allocation and the site is for the user only and the purchaser would have to reapply for the license for that site. It cannot be sold/purchased marketed untendered & be equated to marketable goods. BTS/BSC site therefore, are neither marketable nor capable of being marketed. In the view of the finding arrived that the said subsystem sites are not goods manufactured freely marketable nor the appellants a manufacturer, we do not propose to go into the alternate plea of eligibility to benefit under Notification 67/95-C.E. as capital goods. The plea is attractive but finds no need to be decided in these cases. Similarly the plea of time bar & interest is not gone into since we find no duty demand could be effected in this case sites BTS/BSC not being excisable. We also do not find any material to equate the fixed sites on buildings as in this case with vehicle mounted such sites being shown by Ld. DR. The question of duty interest & penalty as arrived in all these case therefore will not survive. In view of the findings arrived of no exisibility of BTS/BSC fixed sites on buildings, we would set aside the orders in all these appeals & allow them for the same reasons. All appeals allowed after setting aside the orders impugned. Ordered accordingly.
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