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2020 (9) TMI 643 - AT - Central ExciseRecovery of Short paid duty - fabrication of steel tanks for Oil Companies - allegation that the appellants did not obtain Central Excise Registration even after exceeding the SSI exemption limit of turnover ₹ 1.00 Crore - Extended period of limitation - whether the tanks fabricated by the assessee are goods and whether they are liable to Central Excise duty? - Difference of Opinion - Majority decision. HELD THAT:- The appellant manufacture tank in their factory, although some parts of the tanks are finally attached at the buyers’ premises only. I agree with the submission of the learned counsel for the appellant that the impugned goods when left the factory is incomplete and unfinished tanks. But they are still classified as tanks and is liable to excise duty under CETH 73090090 of CETA. The learned Member(Technical) has considered the definition of ‘goods’ and the definition of ‘attached to earth’ and has rightly relied upon the decision of the Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD VERSUS SOLID & CORRECT ENGINEERING WORKS & ORS. [2010 (4) TMI 15 - SUPREME COURT] where it was held that the plants in question were not immovable property so as to be immune from the levy of excise duty. Further the issue involved in the present case is squarely covered by the Division Bench decision of the Delhi Tribunal in the case of M/S V.D. ENGINEERING VERSUS CCE, JABALPUR [2018 (6) TMI 863 - CESTAT NEW DELHI] relied upon by the learned AR wherein identical goods were involved. Though the decision was rendered prior to the decision of this case, the same was not brought to the notice of the Bench at the time of hearing the matter - It was held in the case that Inasmuch as the storage tanks have arisen in the factory of the appellant, the liability for payment of excise duty gets fastened on the appellant. The impugned goods are liable to excise duty and the opinion expressed by the learned Member(Technical) is in accordance with law - In view of the majority decision, Central Excise demand is legally sustainable on merits for the normal period of limitation and the appeals are disposed of as follows: (i) Demands for normal period, is confirmed in both the impugned orders. (ii) Demands for extended period is set aside. (iii) Cenvat credit is available to the assessees. (iv) The prices received by them may be taken as cum-duty prices and duty calculated accordingly. (v) All penalties are set aside. (vi) Appeals are remanded to the original authority for the limited purpose of computation.
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