Customs, Excise and Gold Tribunal - Delhi
M/S Wintech Taparia Ltd. And M/S Gambhir ... vs Cce, Indore on 8 June, 2001
Equivalent citations: 2001(132)ELT403(TRI-DEL)
ORDER
K.K. Bhatia
1. The appellants M/s Wintech Taparia Ltd., are the manufacturers of equipment and machinery for food processing falling under Chapter 84 of the Central Excise Tariff Act, 1985. The intelligence officers of the Central Excise Commissionerate, Indore visited the premises of M/s Gambhir Cold Storage Ltd. Hatod Distt., Indore and M/s Shivshankar Patel MARFED Cold Storage Scheme No. 59, Nai Sabji Mandi, Tejpur, Gadbadi, Indore and on 06.07.1999 and 13.07.1999 respectively. The Central Excise officers found that refrigeration plants and cold storage plants in these premises were installed by the appellants by assembling the equipments manufactured by them. Consequently, a show-cause notice (SCN) dated 23.12.1999 was issued to the appellants along with the aforesaid other two parties calling upon them to show cause why a duty amounting to Rs. 21,57,840/- should not be recovered from them under Rule (9)(2) of the Central Excise Rules, 1944 read with the proviso to Section 11A(1) of the Central Excise Act, 1944. The noticee of the first part were further called upon to show cause why penalties should not be imposed on them under Rule 173Q and under Section 11AC. The Noticees No. 2&3 were called upon to show cause why penalty should not be imposed on them under Rule 209A ibid. They were also called upon to show cause why the stated refrigeration plants detained earlier should not be confiscated under Section 110(1) of the Custom Act, 1962 read with Section 12 of the Central Excise Act, 1944.
2. On consideration of the reply of the concerned noticee parties the Commissioner of Central Excise, Indore vide his order dated 29.09.2000 confirmed the duty of Rs. 21,57,840/- on M/s Wintech Taparia Ltd., Indore along with a penalty of equivalent amount under Section 11AC and a penalty of Rs. 5 lakhs under Rule 173Q. The Commissioner in his order further directed the confiscation of the impugned plants but however gave an option to the Noticees No. 2&3 to redeem these plants on payment of fines of Rs. 2,00,000/- and Rs. 4,10,000/- respectively. He also imposed a penalty of Rs. 1 lakh each of them under Rule 209A.
3. M/s Wintech Taparia Ltd., Indore and M/s Gambhir Cold Storage Ltd., Indore have filed these appeals against the above said order of the Commissioner. The matters are listed today for hearing the stay petitions filed by these parties. We have heard Shri B.L. Narasimhan, Advocate for the appellants M/s Wintech Taparia Ltd. and Shri Mewa Singh, SDR for the respondents. The second appellant viz., M/s Gambhir Cold Storage Ltd. are not represented and there is a request for adjournment on their behalf. Since however, we are inclined to dispose of the stay petition of the main appellants, the stay petition filed by the second appellants is also taken up for disposal with the same. The ld. Advocate representing M/s Wintech Taparia Ltd. On the very out set of his submission relies on the decision of the Tribunal vide Final Order No. 199-211/2001-A dated 18.05.2001 passed in the case of M/s Virdi Brothers & Others Vs CCE, Indore, a copy of which is also filed by him. It is submitted that the cited order is passed by the Tribunal in an appeal filed by the aggrieved party against an order of the same Commissioner confirming a duty of Rs. 63,65,580/- apart from imposition of penalty of equivalent amount under Section 11AC and a penalty of Rs. 10 lakhs under Rule 173Q on them on similar facts. The appellants in that case also had constructed refrigeration plants in the premises of the other noticee parties according to their requirements and as per the contracts entered into with each of such parties. In that order, the Tribunal relying on the decision in the case of M/s Elecon Engineering Co. Ltd. Vs Collector of Central Excise, Chandigarh [1999 (107) E.L.T. 337] observed that no one will contend that refrigeration plant/cold storage is movable to another place for use in the same condition. In such a situation, it is immovable property and immovable property of immovable construction is not an excisable commodity under the Act. The Tribunal in its order further observed, "Various bought out items which went into the construction of the refrigeration plant had already suffered excise duty when they were cleared from the factory where they were manufactured. Construction of refrigeration plant utilising those bought out items is not a manufacturing process wherein any marketable commodity as contemplated by the Act comes into existence." Consequently, it is held that the entire order passed by the Commissioner is devoid of any substance, the same is set aside and the appeals are allowed.
4. On specific query, Shri Mewa Singh, ld.SDR representing the respondents does not dispute that the facts and the findings on the Commissioner in the order under consideration before us in this appeals are identical with those in the above cited case. In this view of the matter, we are of the view that the ratio of the above decision of the Tribunal is applicable to the case under consideration. The appellants have thus made out a prima facie case in their favour. Consequently, we grant waiver of the deposit of the entire amount of the duty and penalty imposed on both the appellants and stay their recovery till the final disposal of the appeals.
5. The appeals should come up for final disposal in their own turn.
(Dictated and pronounced in open Court.)