TMI Blog2009 (10) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... C.A. , for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - The appellant challenges the order dated 23-11-2004 passed by the Commissioner (Appeals) Meerut whereby the appeal filed by the respondent against the order of the Adjudicating Authority was allowed and the proceedings against the respondents for recovery of the duty and penalty were dropped. The Additional Commissioner, Lucknow under his order dated 29-7-2002 had confirmed the liability of the respondents to pay the duty to the tune of Rs. 3,22,920/- and had imposed equal amount of penalty and also ordered payment of interest on the amount due. The said order was passed on the ground that the respondents had constructed/fabricated a steel tan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal was dealing with a point as to whether the molasses storage tank erected on RCC foundation by the process of welding of the steel plates to the angels embedded in the RCC foundation would be a moveable and marketable product which can be subjected to duty, and held thus :- "From the perusal of the records it is clear that the storage tank in question has been raised by welding upon RCC foundation. Such tanks are immovable properly. Further, the tank cannot be moved as such and brought to the market. And once dismantled is ceases to be a tank. Marketability is an essential attribute of goods and excise duty being leviable only on goods, items which fail marketability test cannot be levied to excise duty. The decision of the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g embedded in the earth. In fact, it is a huge structure and the steel utilized for erection of tank was 120 tonnes in weight. The Commissioner (Appeals) after taking into consideration all the materials on record in proper prospective has held the product in question to be non-excisable. It suffers from no infirmity. 7. Considering the decision of the Tribunal in Budhewal Cooperative Sugar Mills Ltd. case and applying the same to the facts of the case in hand, we find no fault with the impugned order passed by the Commissioner (Appeals) and therefore, we do not find any justification for interference therein. The appeal therefore, fails and is hereby dismissed. (Order dictated and pronounced in the open Court) - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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