TMI Blog2001 (6) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... SCL, and from the literature recovered from M/s. SSL reveals that the Effluent Treatment Plant consists of following major components viz. (1) 2 anaerobic digesters, (2) 2 heat exchangers (3) pumps (4) Motors (5) Bio-gas Boosters (6) Vent Seal (7) Vaccum Breaker Tank (8) 4 Recirculation Pumps (9) Feed Pump, (10) Instrumentation Panel (11) Motor control panel and (12) PVC Modules. The anaerobic digester tank is the main constituent part for Methane recovery anearobic digester system. This tanks were made of mild steel having 22 metres diameter and 11.00 metres of height. In order to prevent the digester from wobbling and to secure maximum operational efficiency and also for safety, a concrete civil foundation having depth of more than five metres and for the require diameter is built and first the base plate of the tank is first bolted to the giant size bolts and nuts in the concrete. Then with MS Sheets of 12 mm thickness the tank is erected by welding the MS Sheets piece-by-piece. Other items such as Motors, pumps, Blowers, Heat Exchangers Instrument Control system and Electrical system are erected by the side of the digester. Motors and pumps help in feeding the effluent into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a size of 22 metres diameter and 11 metres in height and weighing 200 tonnes. All the raw materials which were used were all duty paid and the erection was carried out at great length of time by fabrication and welding and the said item cannot be dismantled. On dismantling, it loses its characteristics and the same materials cannot be utilised for erecting the same plant elsewhere of the same size. They also relied on the Board s Circular No. 17/89, dated 21-4-1989 which was in force during the relevant period which clearly laid down that such structures which are attached to the earth is immovable property and not goods liable to Central Excise duty. They also denied the allegation of suppression of facts and stated that the Department was well aware of all the facts and there was no suppression wilfully as alleged for the purpose of invoking larger period. The ld. Commissioner considered the matter in the impugned order and after examining the literatures and submissions, rejected their plea that the item is a Bio-gas plant and concluded that it is an Effluent Treatment Plant in the findings recorded in paras 9 to 14. In paras 15 to 21, he has dealt with the aspect of the item be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 20. SSL in their replies and further submissions, have quoted various Court/CEGAT decisions to contend that anything attached to Earth or permanently embedded to the land and not capable of being brought to the market for being sold as they were as not excisable. Some of the case laws cited are (i) Mittal Engg. Works v. C.C.E. [1996 (88) E.L.T. 622 (S.C.)] (ii) Thungabhadra Steels v. U.O.I. [1998 (98) E.L.T. 334 (Kar.)] (iii) Gujarat Machinery Manufacturers Ltd. v. C.C.E. [1983 (12) E.L.T. 825 (CEGAT)] In all the above cases, the facts clearly show that the components and structures were actually sections or portions of another structure that came into existence by the fabrication of various such portions. Thus, simultaneously after such fabrication, they becoming part of the bigger structure and hence becoming immovable in character. However, the facts of the above cases are not comparable or relatable to SSL s case, since, the MS plates which were welded together to form the Digester tank, can be re-fabricated to form another Digester, if they were cut carefully. As such, the ETP fabricated by SSL are excisable and dutiable. 21. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinguish the facts. He pointed out to the show cause notice to show that the allegation was that the appellant had misdeclared the item to be a Bio-Gas Plant while in fact, on scrutiny by the Commissioner in the light of the evidence, it was found to be Effluent Treatment Plant. There was a clear distinction between a Bio Gas Plant and Effluent Treatment Plant and the distinction has been brought out by the Commissioner in para 14 of his order which the Ld. SDR read out. Ld. SDR read paras 16 to 21 to show that the item was movable and it was excisable in view of the admission made by Shri R. Rajendran that it can be re-fabricated although the Commissioner has recorded that the volume of the digester would get reduced after such re-fabrication. Ld. SDR submits that merely because the size of the digester gets reduced that should not be taken into consideration to hold that the item is an immovable property. The Commissioner in para 20 after referring the Apex Court judgment has distinguished the facts which has been rightly done so, therefore as there was clear suppression and mis-declaration, hence the larger period was invoked. Ld. SDR attempted to distinguish the Apex Court ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. Rajendran in his cross-examination stated that on dismantling the parts can be taken to another place for re-fabrication but what emerges gets reduced on re-fabrication in volume. In para 17, the Commissioner has only drawn a premise that it is possible to be re-fabricated into another Digester. It can be sold in the market even though it may have to be dismantled before being sold . This is a conjucture and without any evidence on record. The Apex Court has gone into great detail on the aspect of excisability, movability and immovability of items, more particularly in the recent judgment rendered in the case of Triveni Engineering Industries Works Ltd. The Apex Court has laid down the test to consider whether an item fabricated brings into existence goods or immovable property. We have gone through the judgment and find the ratio laid down by the Apex Court in this judgment clearly applies to the facts of the present case. In paras 17 to 20, the Apex Court has referred to the earlier judgments and also answered the question as to whether the aspect is immovable property or goods. We extract paras 17 to 20 the above judgment for the purpose of clarity, applicability and appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciency and also for safety. This Court held that in view of those findings it was not possible to hold that the machinery assembled and erected by the appellant at its factory site was immovable property as something attached to earth like a building or a tree. The test, it was noted, would be whether the paper-making machine could be sold in the market and as the Tribunal had found as a fact that it could be sold, so the machine was held to be not a part of immovable property of the company. 19. It appears that the aforementioned two cases - Mittal Engineering Works (P) Ltd. and Quality Steel Tubes (P) Ltd. (supra), were not referred to in Sirpur Paper Mills Ltd. s case. Further, in the instant case it is a common ground that a turbo alternator comes into existence only when a steam turbine and alternator with all their accessories are fixed at the site and only then it is known by a name different from the names of its components in the market. The Tribunal recorded the finding that fixing of steam turbine and the alternator is necessitated by the need to make them functionally effective to reduce vibration and to minimise disturbance to the coupling arrangements and other c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to existence at the site. When the Commissioner has come to this conclusion, we fail to understand how thereafter he has applied the Rule 2(a) to hold all the parts taken together to be steel tanks classifiable under Heading 73.09, as Rule 2(a) would not be applicable in the facts of this case as held by the Tribunal in the case of Nikhil Equipments Pvt. Ltd. (b) We find that the present decision of the Commissioner is against the Board s instructions vide Circular No. 17/89, dated 21-4-1989. The Commissioner cannot decide against the Board s instructions as held by the Hon ble Supreme Court in the case of Ranadey Micronutrients v. C.C.E. as reported in 1996 (87) E.L.T. 19 ending with the case of Paper Products Ltd. v. Commissioner as reported in 1999 (112) E.L.T. 765 (S.C.). (c) We also find that in the case of J.K. Synthetics Ltd. as reported in 2000 (124) E.L.T. 643 (Tri.) = 1999 (33) RLT 129, the Tribunal held that fuel tanks embedded and erected at site were held to be non-excisable and we allow the said decision. 5. In view of the above findings, we set aside the order impugned and allow the appeal in this case, with consequential relief, if any, as per la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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