TMI Blog2009 (3) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... t mere non-registration or non-payment of duty and consequent, non-compliance of formalities and procedures under Excise laws, is not a sufficient reason for invoking the extended period. It has also been urged by them that every act does not lead to misrepresentation and misstatement. Positive act of concealment or activity of misrepresentation is necessary - we are of the view that the longer period is not applicable and on merits also the demands are not sustainable - E/154/2006 - 184/2009 - Dated:- 12-3-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Shri Naresh Thacker, Advocate, for the Appellant. Shri V. Poorna Chandra Rao, SDR, for the Respondent. [Order per: T.K. Jayaraman, Member (T)]. - Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the appellants are held liable for Central Excise. The items are as follows : 1. Ducts 2. Hand Operated Dampers 3. Expansion joints 4. Chimneys 5. Heaters 6. Platforms and ladders All these are made of mild steel for primary reformer package unit in the ammonium plant. The Commissioner in the impugned order has also determined the classification of these items. He has also determined the value based on the available materials on record and has come to the conclusion that the appellants are liable payment of Central Excise duty. The items are all classified under Chapter 84. The appellants relied on large number of case laws. The Commissioner has not accepted the ratio of these case laws. The main conclusion of the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the scope of the contract between BHPV and the appellant. On going through the related papers, we find a letter from BHPV to the appellant dated 11-7-1989 wherein it is stated "with reference to the above correspondence and subsequent discussions had with you, we are pleased to place Letter of Intent for the following scope of work, on back to back basis for the Primary Reformer Package for Nagarjuna Fertilizers Limited". This is an entire package for the primary reformer for Nagarjuna Fertilizers. The scope is supply of materials such as supply of all painting materials (except Thermosensitive paints), material for hot insulation work including fixing components and aluminium cladding, pipes and fittings, flanges for fuel gas and burner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to manufacture and therefore, they are liable for Excise Duty. He has also given the classification. After going through the records, we are enclosing the six photographs supplied by the appellant for proper appreciation of facts. They are given below. What is shown in these photographs is the primary reformer package. Now, anybody on seeing these photos will definitely come to the conclusion without any doubt that they are immovable property. What finally comes out of all these activities is the primary reformer. 5.3 We are convinced on perusal of the contract and the sub-contract that the appellants carry out the entire work. Incidentally, they are also fabricating these parts which are subject matter of this appeal namely expansion j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P) Ltd. - 2003 (151) E.L.T. 3 (S.C.). (x) Gannon Dunkerley Co. Ltd. v. Union of India - 2003 (156) E.L.T. 467 (Bom.). (xi) Triveni Engineering Indus. Ltd. v. Commissioner of Central Excise - 2000 (120) E.L.T. 273 (S.C.). (xii) South India Structural Corpn. Ltd. v. Asst. Collector of Central Excise, Madras - 1998 (102) E.L.T. 13 (Mad.). (xiii) Tungabhadra Steel Products Ltd. v. Union of India - 1998 (98) E.L.T. 334 (Kar.). (xiv) Thungabhadra Steel Products Ltd. v. UOI - 1998 (101) E.L.T. A139 (S.C). (xv) Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, Meerut - 1996 (88) E.L.T. 622 (S.C.) (xvi) Chamundi Die Cast (P) Ltd. v. Commissioner of Central Excise, Bangalore - 2007 (215) E.L.T. 169 (S.C.). (xvii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, this amount cannot be subjected to Excise Duty. 5.4 We are of the view that all the case laws cited by the learned advocate are applicable to the facts of the case. The impugned items in our view arise in the course of the fabrication and erection of the primary reformer which is an immovable property. Therefore, in our view, these items cannot be subjected to Excise Duty. We do not agree with the findings in the impugned order. 5.5 The appellants had made another submission that even if the items are subjected to duty, they should be considered as structures coming under Tariff Heading 73.08 and they are liable for exemption under Notification No. 61/1990-C.E., dated 20-3-1990. We are not going into this question because in our view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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