Customs, Excise and Gold Tribunal - Bangalore
G.V.K. Industries Ltd. And Abb Ltd. vs Cce on 1 December, 2004
ORDER S.L. Peeran, Member (J)
1. Both these appeals arise from a common OIO No. 110/2002-RP dated 28.2.2003 passed by the Commissioner of Central Excise, Visakhapatnam confirming duties and levying penalties on the appellants. Under an Agreement, M/s. ABB had to execute erection and commissioning of power plant in as much as that they had to assemble among others, 3 Heat Recovery Steam Generator (HRSG). The department proceeded against the appellants on the ground that the said item falls under Chapter Sub-heading 8402.10 of the Schedule to the CET Act, 1985 as the appellants had cleared the same without payment of duty. Hence, proceedings were initiated for recovery of duty on the said goods said to have been manufactured and cleared by the appellants without payment of duty. It is the contention of the appellants that the item in question are not goods but they are assembled on the spot piece by piece and they are embedded and grouted to the earth and are clearly immovable property and they are not excisable goods. It is their contention that the issue is totally covered in their favour on the very product as is rendered by the Tribunal in the case of Spectrum Power Generation Ltd. and Anr. v. CCE, Visakhapatnam - 2004 (116) ECR 719 (Tri.-Delhi). A copy of the judgment is placed for perusal.
2. We have heard both sides in the matter and have perused the judgment cited before us and we find that the Tribunal has considered the entire issue in the light of the facts and also extracted in the order the photograph of the plant which has come into existence. After due consideration and by applying the ratio of the Apex Court judgment rendered in the case of TTG Industries Ltd. v. CCE Raipur - 2004 (167) ELT 501 (SC), the Tribunal has held that the items are embedded and grouted to the Earth and have not become goods and that they are immovable property. The findings recorded in para 5 and 6 of the said judgment are re-produced below:
"5. We have perused the records and considered the submissions made by learned SDR also. All the items which have been held to be dutiable in the present case are clearly immovable property. It is well settled that chattle that is not movable to another place as such, for use at the new place cannot be treated as goods, for it is an attribute of goods that they are movable. In the present case, since the items in question are incapable of being moved as such, they cannot be called goods. In view of this factual position, the duty demand made has to be held as not sustainable. Moreover, these items have been imported after payment of customs duty as applicable and the mere erection of imported goods would not amount to manufacture. For that reason also, the duty demand is not attracted. It is equally well settled that penalties cannot survive once duty demand raised is found to be unsustainable.
6. In view of what has been stated above, the impugned order is set aside, and the appeals are allowed with consequential relief, if any, to the appellants."
3. We find that the issue is totally covered in the appellant's favour and, therefore, respectfully following the ratio of the Tribunal's ruling cited supra, the impugned order is set aside and the appeal is allowed with consequential relief, if any.