TMI Blog2017 (5) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... was under confusion, a fact recognized even by the Board in para 4 of the aforesaid section 37B order, the adjudicating authority should also adjudicate afresh the matter of imposability of penalty. Appeal allowed by way of remand. - E/556/2008 - 40772/2017 - Dated:- 16-5-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri N. Venkataraman, Senior Advocate for Ms. Minchu Mariam Punnose, Advocate for the Appellant Shri A. Cletus, Addl. Commissioner (AR) for the Respondent ORDER Per: Madhu Mohan Damodhar The appellants had taken CENVAT credit in respect of certain capital goods used for the construction of various paper making machinery, in particular, materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arified that if any goods installed at site (example paper making machine), are capable of being sold or shifted as such after removal from the base and without dismantling into its components / parts, the goods would be considered to be moveable and thus excisable . The said para also clarifies that the mere fact that the goods though capable of being sold or shifted without dismantling are actually dismantled into their components/ parts for ease of transportation etc, they will not cease to be dutiable merely because they are transported in dismantled condition. Learned Senior Counsel submits that both the judgment of the Hon ble Supreme Court as well as the section 37B order have been considered and relied upon by the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court has observed as follows:- 15. The expression moveable property has been defined in Section 3(36) of the General Clauses Act, 1897 as under : Section 3(36) : movable property shall mean property of every description, except immovable property. 16. From the above it is manifest that the answer to the question whether the plants in question are movable property, would depend upon whether the same are immovable property. That is because anything that is not immovable property is by this very definition extracted above moveable in nature. 17. Section 3 of the Transfer of Property Act, 1882 does not spell out an exhaustive definition of the expression immovable property . It simply provides that un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of that to which it is attached. 19. It is evident from the above that the expression a ttached to the earth has three distinct dimensions, viz. (a) rooted in the earth as in the case of trees and shrubs (b) imbedded in the earth as in the case of walls or buildings or (c) attached to what is imbedded for the permanent beneficial enjoyment of that to which it is attached. Attachment of the plant in question with the help of nuts and bolts to a foundation not more than 1= feet deep intended to provide stability to the working of the plant and prevent vibration/wobble free operation does not qualify for being described as attached to the earth under any one of the three clauses extracted above. That is because attachment of the plant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exation and the object of annexation. In Wake v. Halt (1883) 8 App Cas 195 Lord Blackburn speaking for the Court of Appeal observed : The degree and nature of annexation is an important element for consideration; for where a chattel is so annexed that it cannot be removed without great damage to the land, it affords a strong ground for thinking that it was intended to be annexed in perpetuity to the land. 22. The English law attaches greater importance to the object of annexation which is determined by the circumstances of each case. One of the important considerations is founded on the interest in the land wherein the person who causes the annexation possesses articles that may be removed without structural damage and even arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to qualify the expression attached to the earth, must be for the beneficial attachment of that to which it is attached. Doors, windows and shutters of a house are attached to the house, which is imbedded in the earth. They are attached to the house which is imbedded in the earth for the beneficial enjoyment of the house. They have no separate existence from the house. Articles attached that do not form part of the house such as window blinds, and sashes, and ornamental articles such as glasses and tapestry fixed by tenant, are not affixtures. 24. Applying the above tests to the case at hand, we have no difficulty in holding that the manufacture of the plants in question do not constitute annexation hence cannot be termed as immova ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
