TMI Blog2011 (3) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of duty paid components and erected and commissioned at the site of the factory premises of M/s. Hindustan Lever Limited cannot be called as 'goods' and accordingly they are not liable to excise duty - decided in favour of Assessee. - E/3419/2003 - - - Dated:- 16-3-2011 - Shri Ashok Jindal, Shri P.R. Chandrasekharan, JJ. Appearance: Shri Kunal Kripalani, Advocate for the appellant Shri N.A.Sayyad, Authorised Representative (JDR) for the respondent Per: P.R. Chandrasekharan: This appeal is directed against the Order-in-Appeal No: PKA/163 164/Belapur/2003 dated 31/07/2003 passed by the Commissioner of Central Excise(Appeals), Mumbai - II. 2. The facts involved in this case are follows: M/s. Voltas Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8419.10 and liable to duty @ 40% ad valorem. 2.1 Accordingly, they issued a show cause notice dated 24/12/2001 to M/s. Voltas Limited asking them to show cause as to why the chiller plant commissioned by M/s. Voltas Limited at the premises of M/s. Hindustan Lever Limited should not be classified under Heading 8419.10 and duty demanded thereon amounting to Rs. 2,76,099/- under the provisions of proviso to Section 11A(1) of the Central Excise Act. It was also proposed in the said show cause notice to impose a penalty on M/s.Voltas under Section 11AC of the said Act and also under Rules 173Q and 209 of the Central Excise Rules, 1944 and Rule 25 and 27 of the Central Excise Rules, 2001. The show cause notice further proposed to recover int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /01/2002 in support of the contention that the chiller plant erected and commissioned by them are immovable property and, therefore, not liable to excise duty. They also placed on a number of judicial pronouncements on the subject matter. 2.3 The adjudicating authority passed the order dated 22/04/2002 confirming the duty demand of Rs. 2,76,099/- under Section 11A of the Central Excise Act, 1944. He also imposed equivalent penalty under Section 11AC of the said Act and also a penalty of Rs. 50,000/- under Rules 173Q and 209 of the Central Excise Rules, 1944 and also proposed to charge interest under Section 11AB of the said Act. 2.4 The appellant went in appeal before the Commissioner (Appeals) who vide the impugned order dated 31/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise 2000 (120) ELT 273 (SC) in support of their contentions. They further submit that since the activity was undertaken by them in 1996 the provisions of Section 11AC cannot be invoked as the show cause notice has been issued beyond a period of 5 years. 4. The learned DR, on the other hand, would contend that what is erected and commissioned at the site of the customer, M/s. Hindustan Lever Limited are movable and are goods and hence liable to excise duty as held in the impugned order of the lower appellate authority. As per the certificate given by M/s. Hindustan Lever Limited, the erection was completed in December, 1996 and therefore the show cause notice is within time. He relies upon the following decisions in suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not machines as a whole. They come into existence only by assembly and connection of various components and parts. The chilling plant, which is the product under dispute, is part of the refrigeration / air conditioning system and there is no dispute about this. It is also a fact that the entire frame of which the chilling plant package is erected is grouted to the ground on a concrete foundation and is immovable. Merely because parts such as compressor, condenser, etc are fixed to the structure by means of nuts and bolds, it cannot be said that the chilling plant as a whole is a movable property. What can be removed after unfastening the nuts and bolts are only the individual parts such as compressor, condenser, etc. which have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Triveni Engineering and Industries Limited (referred supra), while considering the excisability of the turbo alternator the Hon'ble apex court held that installation or erection of turbo alternator on the platform specially constructed on the land cannot be treated as a common base, therefore, such alternator would be immovable property as such it cannot be excisable goods falling within the meaning of Heading No. 85.02. This decision of the Hon'ble apex court squarely covers the issue under consideration. The chilling plant which is grouted to the ground on a concrete bed specifically constructed therefore would be an immovable property applying the ratio of the above judgment. Therefore, the apex court judgment supports th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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