TMI Blog2005 (9) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... e on Boards instruction is misplaced. BTS/BSC site are not marketable for another reason also. For installation of every BTS/BSC, License from WPC/SACFA a wing of Department of Telecommunications, Government of India has to be obtained, which invariably is user specific and site specific, meaning thereby if one wishes to sell the site to another user, it is not permissible under law, as the approval granted by the aforesaid authority for the frequency allocation and the site is for the user only and the purchaser would have to reapply for the license for that site. It cannot be sold/purchased marketed untendered be equated to marketable goods. BTS/BSC site therefore, are neither marketable nor capable of being marketed. In the view of the finding arrived that the said subsystem sites are not goods manufactured freely marketable nor the appellants a manufacturer, we do not propose to go into the alternate plea of eligibility to benefit under Notification 67/95-C.E. as capital goods. The plea is attractive but finds no need to be decided in these cases. Similarly the plea of time bar interest is not gone into since we find no duty demand could be effected in this case sites BTS/BSC n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are equipped with various equipment to render the function of signalling data channels error protection. (c) Multiples of BTS are controlled by Base Station Controller (BSC) performing the function of ratio resource man argument. BSC assigns releases frequencies and time slots for all the MSs in the area, reallocation of frequency among cells handing over protocol is executed at BSC along with other function of Power Management of BTS MS. (d) BSC's are in turn networked into Mobile Switch Centre (MSC) through Operation Support Subsystems perform the switching mode. There can be several such MSCs in a Network, connecting to Public Network i.e. International Cable Lines, Local Cable Network or other Mobile Networks. (iii) Thus a GSM Architecture consists of Radio Station Sub Systems (constitution of MS, BTS BSCs) which are networked with the operation support subsystem (constituted by MSCs) which networked with the Public network. 1.3 The entire sub systems of BTSs or BSCs or MSCs and the number of constituents would depend on the Geographical Area covered by a Cellular Network there is no fixed designated numbers to constitute a component of Transmission Apparatus. 1.4 Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be installed. (c) Lightening arrestor, is installed and connected to the Earth pit. Aviation lamp is installed and powered up using electricity from the systems on the ground. (v) The tower is then cleaned, suitable primer applied to all the metal surface of the tower and then painted with paint as per ISI specification. Finally the tower is inspected, as per the checklist designed by the company for confirmation of proper execution of the job. The entire activity is completed in about 30-45 days. (vi) Cell site/BTS site and BSC site erection consists of- (a) The BTS room with the boundary wall for a site having specific size is built. In this BTS room, BTS, radio equipment, antenna, shelter, battery back up, rectifier, etc. are installed at specific places. These equipments are later connected by cabling, compete wiring is done for the building. (b) Similarly, the BSC site is also constructed housing various equipments in a prefabricated building and connecting these equipments by cabling. 1.5 (i) Demands have been raised only on BTS/BSCs coming within the jurisdiction of a Commissioner out of the entire network of DTS/BSC cells other subsystems established by the appellants. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore it is not immovable. 1.6 After considering the material the Commissioner, found BTS/BSC sites in question to be movable the installation activity at site would amount to manufacture; the duty demands were confirmed penalty imposed. Hence the appeals. 2.1 After hearing both sides considering the material it is found - (a) Revenue does not contest or dispute the fact that whenever BTS/BSC site has to be relocated, all the equipment like BTS/BSC, Microwave Equipment, batteries, Control panels, air conditioners, UPS, tower antennae are required to be dismantled into individual components, then they are to be moved from existing site reassembled at new site. This would, involve damage to certain parts like cable trays, etc which are embedded/fixed to the Civil structure the bare components of tower/antennae if that be so, then following the settled position of the law on excisability in such cases, as held by the Apex Court in Triveni Engineering Industries Ltd. -2000 (120) E.L.T. 273 (S.C.) Boards subsequent orders vide Circular No. 58/1/2002-CX., dated 15-1-2002, especially para 5 (thereof which as a whole para 4 (vi) thereof would induce us to conclude that the installation erec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished into complete or finished article, is not satisfied in the present case. Even if it is presumed for the sake of argument that BTS/BSC site is a finished article, there was no article which was incomplete or unfinished coming into existence at the site and which had been converted or finished article. At the site, various complete in themselves equipment, which have individual functions, have been placed/erected at the designated places in the prefabricated building/room or a room built. Further, the tower has been erected piece by piece and on the tower certain equipments have been fitted. Thereafter, all these equipments and tower has been connected by cable and wire. These activities cannot be treated as conversion of an article which is incomplete or unfinished, but having the essential character of complete or finished article converted into complete or finished article. Therefore, the provisions of note 6 to Section XVI of the Central Excise Tariff Act 1985 is wholly inapplicable to the present case. Note 6 to Section XVI cannot be made applicable to BTS/BSC site since the same are immovable property. The reliance on note 6 is therefore wholly misplaced. The impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erform on there own Transmission process required for Mobile cells without the Networking required. The reliance on Boards instruction is misplaced. (e) In the judgment in the case of Triveni Engineering India Ltd. v. CCE reported at 2000 (120) E.L.T. 273 (S.C.), the Hon'ble Supreme Court has categorically laid down as under : 20. The marketability test requires that the goods as such should be in a position to be taken to the market and sold and from the above findings it follows that to take it to the market the turbo alternator has to be separated into its components turbine and the other alternator-but then it would not remain turbo alternator, therefore, the test is incorrectly applied. Though, there is no finding that without fixing to the platform such turbo alternator would not be functional, it is obvious that when without fixing, it does not come into being, it can hardly be functional. In view of the aforesaid judgment, the so-called BTS/BSC site erected, installed and commissioned by the contractors of the company cannot be construed as marketable goods manufactured by the appellants since they cannot go to the market as such. BTS/BSC site are not marketable for ano ..... X X X X Extracts X X X X X X X X Extracts X X X X
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