TaxTMI 
TaxTMI 
2010 (8) TMI 315
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....Electronic Weighbridges, Mobile Weighbridges, Electronic Weighing Machines and other similar items. They imported certain items, namely, Girders of specific size, Ground Plates, CI Plates, Joints, Platform as per their design and model number from their vendors and also manufactured other parts like Digital Weight Indicator, Junction-Box, Component of Electronic Jumbo Display, Opto Isolater, Converter, Belt Weigher and Weighbridge in their factory itself. Having learnt that the applicants had cleared all the items which would constitute a weighbridge of a particular model in an unassembled/disassembled form and cleared the same without payment of duty during the period from April, 2003 to March, 2008, on investigation being carried out, a show cause notice dated 3-6-2008 with a corrigendum dated 8-8-2008 came to be issued to the applicants which was contested by the applicants and after hearing the parties, the impugned order came to be passed. 4. While assailing the impugned order, to justify the stay thereof, the learned advocate for the applicants submitted that, in the applicants' own cases the Tribunal has decided the matter in favour of the applicants and they involve a....
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....ered by the Tribunal earlier in the matters relating to the applicants would not bar taking a different view in the present case. 5. The learned advocate for the applicants has also raised the point regarding bar of limitation in the sense that there is no sufficient material to justify invocation of extended period of limitation as the period involved is from April, 2003 to March, 2008, whereas the show cause notice was issued only on 3-6-2008. He has also drawn our attention to the quotations in relation to the RCC Platform for the Electronic Weighbridge and in particular to the effect that the civil work was required to be arranged by the purchaser of the weighbridge as also the unskilled labour was required to be arranged by the purchaser in relation to the concrete platform. 6. The system of bringing into existence the weighbridge at the site of the customer as described by the applicants in their reply to the show cause notice is as under : "(I) A pit is dug at the site at depth of several meters, depending upon the soil conditions and the specifications/capacity of the Weigh Bridge. Normally, it can be five feet or more. (II) ....
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....ibunal, the point advanced on behalf of the appellant, that whatever is embedded in earth must be treated as immovable property is basically not sound. For example, a factory owner or a house­holder may purchase a water pump and fix it on a cement base for operational efficiency and also for security. That will not make the water pump an item of immovable property. Some of the components of water pump may even be assembled on site. That too will not make any difference to the principle. The test is whether the paper making machine can be sold in the market. The Tribunal has found as a fact that it can be sold. In view of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the company. Just because a plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovable property. 6. A further argument was made that the entire machinery as it is cannot be bought and sold because the machinery will have to be dismantled before being sold. The Tribunal has pointed out that the appellant had himself bought several items and completed the machinery....
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....be supplied and were shop tested by them before supply." The above finding has been arrived at on analysis of the invoices of the products supplied by the applicants to the customers and is evident from the copies thereof placed before us in the paper book. Merely because civil work was required to be arranged by the purchaser in relation to the concrete platform, that itself would not make the product an immovable property nor it could justify the claim of the applicants that the product does not amount to an excisable one. Rather the involvement of the customer in the civil work of the concrete platform would lend support to the finding of the authority that the goods supplied by the applicants were merely attached to the earth with the nuts and bolts would not transform the same into an immovable property nor it would lose the marketability. In fact, the issue regarding marketability stands answered by the finding about the supply of the goods to the customers itself. 9. As regards the decision in the matter of Narne Tulaman Manufacturers Pvt. Ltd. (supra), it, undoubtedly, favours the view taken by the Department. Equally it is true that, as sought to be contended on beh....
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....year, the financial condition of the firm cannot be ascertained, even otherwise, while placing on record the relevant documents, the applicants have chosen to file a truncated document. The reasons for the same are not known. 13. As regards the contention about the non-justification for invocation of extended period of limitation, the impugned order has dealt with this aspect in para 64 which reads as under : "64. Further, Shri Ashish Bhutani, Director of the Company has stated in his statement dated 3-5-2008 that they had been availing SSI exemption after filing the necessary declaration with the Central Excise Department and submitted copies of such declaration dated 18-3-06 and 18-9-06. A par the declaration, the party declared that being registered SSI unit, they were availing excise exemption limit of 1.5 crore on excisable product. Also scrutiny of Annexure-A attached to their declaration dated 1-4-08 reveals that they are manufacturer of Electronic Weighing machines of Chapter 842381 & 842382 and parts of weighing machines and parts of Electronic weighing weighbridge of Chapter 84239020 including mobile weighbridges of chapter 84238900. The scrutiny of declaratio....