TMI Blog2007 (8) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... at the goods in question do not satisfy the test of marketability except relying on the Judgment of the Supreme Court ? E) Whether the tribunal was justified in law in going into the question of marketability in view of the fact that the goods in question are covered by CHS No.8525 of the Central Excise Tariff 1985 ? 2. A few facts may be set out as under:- A show cause cum demand notice was issued by the Commissioner of Central Excise calling upon the assessee to show cause to the duty demand with interest and penalty thereon. The assessee filed a reply denying the liability and contended that the goods were not excisable. The Commissioner, after giving opportunity to the respondents, passed an order dated 29/11/2004 confirming the demand of central excise duty as also penalty on the respondents. The respondents aggrieved by the same preferred appeals before the CESTAT and by order dated 9/9/2005 the appeals preferred by the respondents were allowed. CESTAT while allowing the appeals held that the goods manufactured are not freely marketable nor the appellant / respondents manufacturers. The learned Tribunal while allowing the appeals relied on the Judgments of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercial community for purposes of buying and selling (See Moti Laminates Pvt. Ltd.) (supra). Although the duty of excise is on manufacture or production of the goods but the entire concept of bringing out new commodity , etc. is linked with marketability. To become goods an article must be something which can ordinarily come to the market or brought and sold. Therefore, any goods to attract excise duty must satisfy the test of marketability. To have attributes of excisable goods as understood in the Excise Law, there must be mobility and marketability. As to whether the goods embedded in earth or building would be excisable has to be decided on the touchstone of permanency. If the goods or the chattel was movable from one place to another in the same position or liable to be dismantled and re-erected at the later place, if it is liable to be shifted and was dismantled or re-erected at a later place, it will be movable property. But if erected permanently without being shifted from place to place, then it would be treated as permanently attached to the earth [see Municipal Corporation of Greater Bombay Ors. V/s. Indian Oil Corporation Ltd. (1991 Suppl. (2) S.C.C. 18)]. 6. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Microwave Terminal. d) GSM Antennas e) Power supplement with rechargeable battery back up. f) Air conditioners. g) Transmission tower was erected at the top of the building. h) The tower was fitted with microwave antennas. i) The BTS/BSC was installed in prefabricated building object. Based on this material the Commissioner held that what emerges is a new commodity. The argument advanced that only "Base station controller / Base trans-receiver station, cell site / Mobile Switching centre" were connected with the transmission and receiption signals and other equipments were not part of the same, the argument was held as not acceptable as without the tower, UPS, Cable trays, AC., etc., the BTS would not be in a position to function as transmitting and receiving apparatus. The contention of the assessee that various equipments installed at site were individual machine was rejected. The Commissioner further held that with the assembly of various equipment installed what emerges is a commodity with a distinct name, identity, character and use; distinct from inputs and classifiable under chapter 8525 of Central Excise Tariff and the same is distinct and separate from the var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of being marketed. The learned Tribunal also held that the appellants are not manufacturers and they are engaged in providing cellular mobile services by virtue of a license granted by the Government of India under the provisions of section 4 of the Indian Telegraph Act, 1885. Thus, their activity is purely service oriented. The Tribunal held that in such circumstances, the activity of installing and commissioning cell site cannot be an activity of either manufacture and no marketable goods arise. For the aforesaid reasons, the appeal was allowed and accordingly, the orders were set aside. 9. It is not necessary for us to answer the issue as to whether the activities is purely service and consequently, the appellants are not manufacturers. We proceed on the footing that what has been assembled and installed is a new commodity having a distinct name from the components from which it was assembled. The question is whether this new commodity is marketable. We have already considered the test of marketability as laid down by the Supreme Court in Triveni Engineering India Ltd. (supra) and also Moti Laminates Pvt. Ltd. (supra). At this stage, we also note that we proceed on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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