TMI Blog2019 (2) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of duty. There is no evidence to establish such suppression of facts - moreover, the issue was under litigation and is an interpretational one - the demand raised invoking the extended period cannot sustain. Appeal allowed - decided in favor of appellant. - E/ROA/41752/2018 and E/00235/2008 - FINAL ORDER No. 42738/2018 - Dated:- 31-10-2018 - Smt. Sulekha Beevi C.S, Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri Abdesh Chaudhary, Adv., For the Appellant Shri S. Godindarajan, AC (AR), For the Respondent ORDER Per Bench: The above application for restoration of appeal is filed by the appellant seeking to restore the appear, which was dismissed for default on 02.08.2018 vide Final order No.42199/2018. on 24.10.2018, when the matter was called, the learned counsel Shri Abdesh Chaudhary appeared for the appellant and submitted that on 02.08.2018, the counsel had started from Delhi to Chennai by fright. The flight, unfortunately, got delayed and he could not reach the Tribunal within time. The matter was taken up and dismissed for default before counsel could reach the Tribunal. Though, he made a mention to the Bench at 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority. Hence, this appeal. 5. The learned counsel for appellant, Shri Abdesh Chaudhary took us to the genesis of the litigation and argued that initially the appellant was paying duty on the goods. On 12.01.2000, the appellant filed a protest letter before the departmental authorities contending that they have been wrongly paying duty and are not liable to pay duty' Thereupon, a series of show-cause notices was issued to the appellant. Nine show-cause notices were issued to the unit at Delhi and show-cause notice was also issued from Chennai Commissionerate, which is the present litigation. In respect of the show-cause notice, dated 07.11.2002, covering the period 1997-2002 for an amount of ₹ 4,55,48,984/-, the proceedings initially confirmed the demand. At the stage of appear before Tribunal, vide Final order No. 466-467/2006, dated 27.04.2006, the Delhi Bench of the Tribunal set aside the duty demand for the extended period and the demand for the normal period was remanded to the original authority for fresh adjudication. In such remand proceedings, the adjudicating authority vide Order-in-Original Nos. 17-21/2006 dated 21.12.2006 dropped the demand h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 21.12.2006. In clause (5) and (8) of para 4 of the said circular, it is clarified that if any goods installed at the site, which are capable of being sold or shifted without damaging such goods, then, the same has to be considered as movable goods and then, would be excisable. If items assembled or erected at site and attached to foundation by earth cannot be dismantled without substantial damage to its components, then, the same cannot be considered as movable and will not be excisable goods. He referred to the photographs enclosed in page 205-207 of the appeal paper book and submitted that the structure installed at the site by the appellant for the client ALFL cannot be dismantled and removed from the base without damage. If dismantled, the goods would be mere scrap and cannot be used thereafter. Applying the Board's circular as well as decision in the case of M/s. AGV Alfab Ltgd., vs commissioner of central Excise, Delhi-II reported in 2005 (186) E.L.T.451 (Tri.-Del.). The demand was rightly set aside in earlier litigations. It is added by the counsel that the issue whether the activity would amount to manufacture has reached finality for the reason that the appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. He submitted that the activities of the appellant, which have been considered and decided in the other show-cause notices, are different from the present show-cause notice. In the earlier show-cause notice, which was subject to de novo adjudication vide order-in-original, dated 21.12.2006, the activities at the site were for construction of doors and windows at site; curtain wails and cladding. In the present case, investigation revealed that workmen were employed for the purpose of carrying out activity and manufacturing USGS at the project site of appellant for ALFL. Two nos. of wooden platforms, one no. Variable Ratio Hydramate Mixer fitted with the spray gun, connected to an air compressor and certain number of tools was being used for the manufacture of USGS. The appellant has factory at New Delhi and were manufacturing the said goods and clearing the finished goods, paying central Excise duty. The appellant had brought seventeen workmen and One supervisor along the above machine to carry out the activities at the project site at Chennai. The aluminium frames required for the manufacture of USGS and AW were cut to size as per the required dimensions at the factory premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er/penetration of water wherever required in the perimeter of transoms. pressure equalization' system is provided as per design data. The structures so erected are tested for water penetration at site before handing over of the curtain wall as a complete item as per international standard (AAMA 501.2-94 American Code). The curtain wall can be compared with the brick war, which consists of bricks and mortar as specified or as per design requirement. The brick wall is constructed site by laying the bricks in the desired bond and joined together with the mortar so that it can withstand the loads and pressures like that of air and water coming on it. But if the brick wall is dismantled it will not be called the wall and it will be scrap. similarly, if the curtain wail is dismantled it will not be curtain wall and it will become scrap as it cannot be used for any other purpose or at any other place because. the typically drilled holes in the vertical and the horizontal members cannot be fitted in any other location as explained herein above. The curtain wail after erection at site wit be the immovable property like the brick wall as it is designed with all considerations like sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such size, capability of goods to move on self-propulsion-ships-etc.,) to remove and sell the goods as they are, without dismantling into their components. If the goods are incapable of being sold, shifted and marketed without first being dismantling into component parts, the goods would be considered as immovable and, therefore, not excisable to duty. 14. Thus, it can be seen from the circular that if the goods installed at site are capable of being sold or shifted as such, after removal from the base, then the goods would be considered to be movable and excisable. In the present appeal, the department has no case that the goods installed/structure erected can be shifted or disassembled without causing damage to the components/parts. Even as per the circular, the goods then would be immovable property and, therefore, not excisable to duty. The learned counsel has rightly pointed out that if the curtain wall/AWs, cladding are pulled down or dismantled, it would result in scrap only. 15. In the appellant's own case, the Tribunal vide Final order No.52484-42485/2015, dated 05.08.2015 had considered the very same issue and taking note of the fact that the appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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