TMI Blog2007 (8) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by a Commissioner of Central Excise, Bangalore No. 3. By the said order the Commissioner confirmed demands on bringing into existence "electric power fencing system by use of solar power". The same was classified in sub-heading 8543.90 as "other electrical machinery and apparatus having individual functions". The Commissioner had invoked larger period in terms of Section 11A of the Central Excise Act, 1944 (in short the 'Act'). He confirmed the duty demand and also imposed like sum as penalty under Section 11AC of the Act. Penalty of rupees five lakhs was also levied on the Managing Director. According to the Revenue for the purpose of manufacture and clearance of the said item, namely, solar power electric power fencing system, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be reused if at all for use in other places does not mean that the item has got destroyed while refixing the same. The item has not become immovable property on erection piece by piece. The poles are fixed and the wires are fenced with all the other parts. The fence gives electric shock to animals when they want to cross the same it acts not only as an electrical barrier but also as a psychological barrier as no human or domestic animal having felt the shock once will attempt to go anywhere near the fence again. The power fence systems of various components which are brought out and some are manufactured and some are imported. They are all assembled to bring into existence solar power fence as a system. There is no civil work for er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Managing Director. 3. In support of the appeal leaned counsel for the appellant submitted that the excisability on plant and machinery assembled at site has been considered by this Court and placed strong reliance on decision of this Court in Commissioner of Central Excise, Indore v. Virdi Brothers [2007 (207) E.L.T. 321 (S.C.)]. 4. Learned counsel for the Revenue, on the other hand, submitted that though in some cases this Court remanded the matter to the CESTAT to decide on the factual aspects, in this case categorical findings have been recorded on the aspects for which remand has been made and, therefore, the assessee's appeal is without merit. 5. Apart from Virdi Brothers case (supra) this Court in Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Circular reads as follows: "Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Sub : Excisability of plant and machinery assembled at site-Regarding In exercise of the power conferred under Section 37B of the Central Excise Act, 1944, the Central Board of Excise and Custom considers it necessary, for the purpose of uniformity in connection with classification of goods erected and installed at site, to issue the following instructions. 2. Attention is invited to Section 3Th Order No. 53/2/98-CX, dated 2-4-98 (F. No. 154/4/98-CD.4) [1998 (100) E.L.T. (T9)] regarding the excisability of plant and machinery assembled at site. 3. A number of Apex Court judgments have, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nct commercial name, identity and use (prior to such product being assimilated in a structure which would render them as a part of immovable property), excise duty weald be chargeable on such goods immediately upon their change of identity and prior to their assimilation in the structure or other immovable property. (c) Where change of identity takes place in the course of construction or erection of a structure which is an immovable property then there would no manufacture of "goods" involved and no levy of excise duty. Integrated plants/machines, as a who1e may or may not be 'goods'. For example, plants for transportation of material (such as handling plants) are actually a system or a net work of machines. The system comes into being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of various components and parts. Though each component is dutiable, the refrigeration/air conditioning system as a whole cannot be considered to be excisable goods. Air conditioning units, however, would continue to remain dutiable as per the Central Excise Tariff. 6. Based on the above clarifications pending cases may be disposed of. Past instructions, Circulars and Orders of the Board on this issue may be considered as suitably modified. 7. Suitable Trade Notice may be issued for the information and guidance of the trade. 8. Receipt of this order may please be acknowledged. 9. Hindi version will follow." 9. As the basic factual aspects were not considered by the CEGAT we deem it proper to remit the matter to it for a fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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