Customs, Excise and Gold Tribunal - Bangalore
M/S Palmtech Engineers Pvt. Ltd., ... vs The Commissioner Of Central Excise, ... on 26 April, 2001
Equivalent citations: 2001(76)ECC525, 2001(132)ELT492(TRI-BANG)
ORDER
Shri S.S. Sekhon (Oral)
1. The appellants being technical consultants, are an engineering concern and entered into a contract with M/s South India Viscos Ltd. for designing and fabrication of steel storage tanks. The steel sheets and other raw materials were procured and transported to the clients factory site in Palani Taluk (Tamil Nadu) and the tanks of 22 feet height or so, were fabricated at the site of factory of M/s South India Viscos Ltd.
2. The Collector. Central Excise, Bangalore vide his order impugned before us, issued a demand notice on the steel storage tanks which were cleared without demand of duty and confirmed same and imposed a penalty under rule 173 Q (1) on the grounds that Collector Central excise, Coimbatore vide his order V73/09/15/9/93-Adjn. dt 6.10.93 had come to a finding that the appellants had fabricated the tanks at their factory in Tumkur. That order was final, therefore, the demands ad penalties on the present appellants were called for.
3. We have heard both sides and considered the matter and find -
(a) Para 3 of the Board's Circular No 17/89 dated 21-4-1989 which is reproduced herein below -
To illustrate, it plats, channels etc. "3. for water tank are taken to site and first a tank is fabricated at site which is then lifted and placed in position and permanently attached to the earth/building, then a water tank comes into existence as goods capable of being brought and sold in the market and is liable to Central Excise duty. But where such tank comes in to existence by fixing piece by piece while attached to the earth, it would be regarded as part of immovable property not liable to Central Excise duty."
would indicate, that in the facts of this case, no duty can be recovered on such 22 feet height tanks, since such tanks necessarily have to come into existence considering their size, piece by piece, attached to the earth. The Collector's order, with out considering this Board's Circular are bad in law. It is well settled now. The department cannot argue against the Board's instructions.
(b) The matter is no longer Res-integra, as we find the issue has been well settled in the case of Shree Siddeshwar SSK Ltd. 1999 (109) ELT 472 (Tribunal) and in the case of Beam Engineering Pvt Ltd. 2000 (122) ELT 821 (Tribunal) and relying on the same, we cannot confirm the duty demand on such tanks and penalty in this case, merely because Collector, Coimbatore in another order had arrived at a finding of fabrication of the tanks at appellants factory at Tumkur.
(c) The impugned order does not consider why the evidence of transport produced before the learned Collector by the Respondents that steel sheets were purchased and supplied form Madras to site was not acceptable. Therefore, we also find that the order has been passed without considering the material evidence roduced in defence. Such order cannot be sustained.
3. In view of our above findings, the order is set aside and appeal allowed.
4. (Pronounced in the court on)