TMI Blog2008 (5) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, Member (T) Shri Ruvi Raghvan, Advocate, for the Appellant. Shri V. Choudhary, DR, for the Respondent. [Order per Rakesh Kumar, Member (T)]. - This is an appeal against order-in-appeal dated 25-11-05 passed by Commissioner of Central Excise (Appeals), Ghaziabad by which he upheld the order-in-original dated 31-3-2005 passed by Additional Commissioner of Central Excise, Ghaziabad confirming duty demand of Rs. 58,73,564/- against the appellant and imposing total penalty of Rs. 68,73,564/- on them. The period of dispute is from 1-7-2000 to 31-12-2004. The appellants are engaged in the manufacture of Integrated Control Automation Monitoring Systems (ICAM systems) falling under Heading 90.32 of Central Excise Tariff. These system ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants on the above ground and also seeking imposition of penalty on them on this count under Section 11AC of the Act and Rule 25(1) of the Central Excise Rules, 2001 /2002. These show cause notices were adjudicated by a common order-in-original dated 31-3-2005 by which demand of duty amounting to Rs. 58,73,564/- was confirmed alongwith interest on this duty at the applicable rate and besides this total penalty of Rs. 68,73,564/- was imposed. According to Revenue, the charges for erection, installation, commissioning, supervision and training, wherever the same are recovered from the customers, are 'by the reason of or in connection with the sale of ICAM system and that the ICAM systems after installation in the customers' premises do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this reason also, these charges are not includible in the assessable value. In this regard, reliance is placed on the judgment of the Hon'ble Supreme Court in the case of CCE v. Kelvinator of India Ltd. reported in 1988 (36) E.L.T. 517 (S.C.). (3) Hon'ble Supreme Court in the case of Thermax Ltd. v. CCE reported in 1998 (99) E.L.T. 481 (S.C.) has held that the amounts recovered on account of installation, erection and commissioning of a boiler at the site of the customer would not be includible in the assessable value. The Tribunal in a series of judgment which are mentioned below has also taken the same view. 1. Rollatainers Ltd. v. CCE, Bangalore - 2005 (187) E.L.T. 257 2. Vesuvius India Ltd. v. CCE, Visakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected for training are not includible in the assessable value. (6) The amounts recovered from the appellants on account of erection, installation, commissioning and supervision and training are for various services rendered by them at the customers site and for this activity, the appellants are registered with the Department as service tax assessee and are discharging service tax liability on this amount. For this reason also, there is no question of inclusion of this amount in the assessable value. (7) The issue as to whether the amounts, in dispute, are includible in the assessable value of the ICAM systems had already been decided in the appellants' favour by the jurisdictional Asstt. Commissioner for the period prior to July, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional assessments of the appellant's company and at that time, the Asstt. Commissioner vide his Order-in-Original No. 77/94 dated 26-4-1994, accepting the appellant's contention that the erection, installation, supervision and commissioning at site or training of the customer's employees are purely optional and that the activity of erection, installation and commissioning at site results in ICAM systems becoming fixed to the ground and becoming immovable property, held that the charges on account of installation, erection, commissioning, supervision at site and training of customer's employees are clearly post removal expenses, having no nexus with manufacturing or marketing of the goods and hence the same are not includible in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
