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TMI Blog2019 (6) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... e Anti-Evasion Unit of Haldia Commissionerate into the allegation of evasion of Central Excise duty by the appellants in respect of supply and setting up of such RO Water Treatment Plant. After conclusion of investigation, show-cause notice dated 12.08.2010, was issued proposing to demand of Central Excise duty totally amounting to Rs. 68,67,384/-. After consideration of reply filed by the appellants to the show-cause notice and extending a personal hearing, the adjudicating authority passed the impugned order in which he upheld the demand of Central Excise duty as made in the show-cause notice along with interest. In addition, the adjudicating authority also imposed penalty for an amount equal to the Central Excise duty demanded. Aggrieved by the impugned order, the present appeal has been filed. 3. The appellant is represented by Shri Muthu Venkataraman, ld.Advocate along with Shri M.N. Bharathi, ld. Advocate and Revenue is represented by Shri S.S. Chattopadhyay, ld.D.R.. 4. The ld.Advocate submitted that the appellant is not liable for payment of Central Excise duty as demanded in the impugned order. His main arguments are summarized below : (i) He submitted that the acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee. The decision has also been followed in the subsequent decision of the Tribunal in the case of ION Exchange (India) Ltd. Vs. CCEx., Chennai reported in 2002 (150) ELT 1235 (Tri.-Chennai). (vi) Lastly, the ld.Advocate submitted that the demand raised is also liable to be held as time barred inasmuch as the same assessee was already visited with another show-cause notice dated 20.03.2008/05.03.2008 proposing the demand of Central Excise duty on identical goods. (vii) Finally, he submitted that the impugned order may be set aside and appeal may be allowed. 5. The ld.D.R., on the other hand, justified the impugned order. He submitted that the RO Water Treatment Plant is specifically classifiable under Chapter Sub-heading No.842102190 of Central Excise Tariff Act, 1985. He refers to the Certificate issued by the Executive Engineer, Zilla Parishad dated 13.01.2010, in which it is stated that the RO Water Treatment Plant so installed is shiftable except its foundation structure, without causing any damage to plant/accessories and stationary in nature. He submitted that in view of the above, the Adjudicating Authority was right in holding that RO Water Treatment Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Executive Engineer has certified that Water Treatment Plants were erected out of materials brought to the site and assembled at site and it is an immovable property. 10. After considering both the Certificates issued by the Executive Engineers, Zilla Parishad as well as processes of setting up of Water Treatment Plant, we are of the view that Water Treatment Plant erected at the site, cannot be considered as "goods". The Plant has come into existence only at the site in a progressive manner on a civil construction plat form. After conclusion of such erection, it is clearly in the form of immovable structure. The fact that about 60% of the Plant can be dismantled without damage thereof, cannot be a reason to reject the conclusion as above. 11. We also find that the excisability of such Water Treatment Plants, has come up before the Tribunal in several cases. The appellant places reliance on the Three Member Bench decision of the Chennai Bench of the Tribunal in the case of ION Exchange (India) Ltd. (supra). The Tribunal has taken the view that the process of erection at site, does not bring into existence "goods" and hence not liable to duty. 12. The decision of the Three M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 (S.C.), specific reference has been made to the following observations of the court : "When the matter came to the Tribunal, the Tribunal proceeded on the assumption that the PCA only packed the different equipments/pieces and items that they bought from different people at their depot at Nangal Shama and that they do not manufacture the components. Dealing with PCA's submission is that they do nothing more than packing the equipments/items bought from different people in cartons and boxes was taken to be true. Yet it was held that this process amounted to manufacturing. The Tribunal observed that "even the Collector's findings that they had manufactured the twink simmermatic by affixing the heat control panel is unimportant and need not lead us away from the path". In fact, the Tribunal did not examine the correctness of the facts found and the conclusion reached by the Collector. The Tribunal held that the path taken by the Collector was not the path that should have been taken. The Tribunal disposed of the case proceeding on the assumption that nothing was done by the PCA except to gather the various tax paid articles and put them in a box themselves and in the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plants need not suffer excise duty. Thus, when the facts of the case were known to both sides, there is no substance in the allegation that relevant facts were wilfully suppressed by the appellant with the intention to evade payment of duty. 32. In view of what has been stated above, I am of the view that the appeal is required to be allowed." 6. In view of this Bench having decided in the appellant's own case by majority order holding that the process of assembly at site does not bring into existence excisable goods and are not liable to duty, therefore, the impugned orders in orders-in-original in these 27 appeals are required to be set aside by allowing the appeals. The COD application in Appeal No. E/177/02 is taken up and allowed in view of the main appeal already pending before the Tribunal and which is already listed for today for consideration. The stay applications are also allowed in the same term, with consequential relief, if any." 13. In the finding of the Three Member Bench, it is held that the process of assembly does not bring into existence any excisable goods. We find that the Hon'ble Bombay High Court in the case of Larsen & Toubro Ltd. Vs. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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