TMI Blog2007 (4) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. To come to the conclusion, the Appellate Authority below relied on the statement recorded from Shri Pradip Kumar Das partner of the Appellant firm and held that the tanks manufactured for IOCL and BPCL have been installed below the ground was not immovable property for which those were excisable goods and dutiable. 2.1 Ld. Consultant appearing for the Appellant submitted that there were adequate materials before the authorities below which included the purchase order placed by IOCL and BPCL showing nature of the tank as well as its capacity meant for fabrication and placed under ground attaching to earth so that those tanks become immovable. Further, statement recorded on 10-5-94 from Shri Pradip Kumar Das one of the partners explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.3 He further submitted that the job work if liable to duty that shall be valued in terms of ratio laid down in Ujagar Prints by the Apex Court. With all the above factual aspects highlighted, the ld. Consultant submitted that the authorities below not applying their mind properly to the facts and circumstances of the case, the appellants deserve consideration by this forum and the order-in-appeal is liable to set aside. In support of his arguments the ld. Consultant cited following decisions :- (i) Triveni Engineering Indus. Ltd. v. CCE [2000 (120) E.L.T. 273 (S.C.)] (ii) CCE, Chandigarh v. Bhagwanpura Sugar Mills [2001 (134) E.L.T. 673 (Tri.-Del.)] (iii) T.T.G. Inds. Ltd. v. CCE, Raipur [2004 (167) E.L.T. 501 (S.C.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. Naming a few are Commissioner of Central Excise, Indore v. Virdi Brothers, 2007 (207) E.L.T. 321 (S.C.), Quality Steel Tubes Pvt. Ltd. v. CCE - 1995 (75) E.L.T. 17 (S.C.); Mittal Engineering Works Pvt. Ltd. v. CCE, Meerut - 1996 (88) E.L.T. 622 (S.C.); Sirpur Paper Mills Ltd. v. CCE, Hyderabad - 1998 (97) E.L.T. 3 (S.C.); Silical Metallurgical Ltd. v. CCE, Cochin - 1999 (106) E.L.T. 439 (Tribunal); Duncan Industries Ltd. v. CCE, Mumbai - 2000 (88) ECR 19 (S.C.); Triveni Engineering Industries Ltd. v. CCE - 2000 (120) E.L.T. 273 (S.C.) and CCE, Jaipur v. Man Structural Ltd. - 2001 (130) E.L.T. 401 (S.C.). 4.4 In the light of ratio laid down by the Hon ble Supreme Court, a Circular was issued by CBEC vide No. 58/1/2002-CX., dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being bought and sold that shall be liable to duty if the goods are excisable goods covered by the Schedule to the Act. Following such twin test the Apex Court in Quality Steel Tube (P) Ltd. v. CCE, UP - 1995 (75) E.L.T. 17 (S.C.) observed as under :- The basic test therefore, of levying duty under the Act is two fold. One, that any article, must be a goods and second, that it should be marketable or capable of bring brought to market. Goods which are attached to the earth and thus become immovable do not satisfy the test of being goods within the meaning of the Act nor it can be said to be capable of being brought to the market for being bought and sold. Therefore, both the tests as explained by this Court, were not satisfied in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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