Custom, Excise & Service Tax Tribunal
C.C.E., Jaipur Ii vs Aditya Cement on 23 November, 2011
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-III Date of hearing/decision:23.11 .2011 Central Excise Appeal No.932 & 933 of 2006 Arising out of the order in appeal No.952-953(HKS)CE/JPR-II/2005 dated 28.12.2005 passed by the Commissioner (Appeals II), Customs & Central Excise, Jaipur. For Approval and Signature: Honble Mrs. Archana Wadhwa, Judicial Member Honble Mr. Mathew John, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes C.C.E., Jaipur II .. Appellant Vs. Aditya Cement . Respondents
Rajasthan Spinning & Weaving Mills Ltd.
Appearance:
Shri S.R. Meena, S.D.R. for the appellant Shri Mayank Garg, Advocate for the respondents Coram: Honble Mrs. Archana Wadhwa, Judicial Member Honble Mr. Mathew John, Technical Member Oral Order No.____________________ Per Mrs. Archana Wadhwa:
Being aggrieved with the order passed by the Commissioner (Appeals II), the Revenue has filed the present appeals. We have heard Shri S.R. Meena, learned SDR appearing for the Revenue and Shri Mayank Garg, learned Advocate appearing for the respondents.
2. Proceedings were initiated against the respondents alleging that they have erected/installed water treatment plant in their factory premises without payment of Central Excise duty. As such, notice proposed confirmation of duty of Rs.25,142/- against Rajasthan Spinning & Weaving Mills Ltd. and Rs.1,26,569/- against M/s Aditya Cement. The said show cause notice culminated into orders passed by the original adjudicating authority confirming demand and imposing penalties. The said orders were challenged before the Commissioner (Appeals II), who set aside the impugned orders of the authorities below by following the Tribunal decision in the case of M/s Ion Exchange (India) Ltd. vs. C.C.., Coimbatore 2003 (159) ELT 499. It stands held in the said decision that the plant came into existence at the factory premises carrying out the activity of assembly piece by piece with civil work and what emerged was an immovable condition. The plant has come into existence after the erection and not before. The Bench examined the applicability of Apex Court judgment in the case of Sirpur Paper Mills vs. C.C.E. , Hyderabad 1998 (97) ELT 3 (SC) and had held that the same is not applicable, inasmuch as the paper making machine had already come into existence as movable property in that case before the same was fixed to in the earth and held to be not immovable property. Accordingly, the Bench observed that water treatment plant came into existence with civil work and has to be held as immovable property. By following the said decision, the Commissioner (Appeals-II) held in favour of the respondents.
3. Revenue in their memo. of appeal have again relied upon the decision of the Honble Supreme Court in the case of Sirpur Paper Mills vs. C.C.E. , Hyderabad and have prayed that in view of the above decision, the respondents were liable to discharge the duty liability in respect of the water treatment plant.
4. We find no merit in the above contention of the Revenue. Admittedly, the decision of the Honble Supreme Court in the case of Sirpur Paper Mills vs. C.C.E. , Hyderabad was considered by the Bench in the case of Ion Exchange (India) Ltd. vs. C.C., Coimbatore and was distinguished. The decision in the case of Ion Exchange (India) Ltd. vs. C.C., Coimbatore is as per the majority of two Members holding that judgement in Sirpur Paper Mills is not applicable to industrial treatment plant erected at site being immovable property is not liable to duty of excise.
5. Apart from the above , we also note that the issue stands decided by the Honble Bombay High Court in Larsen & Toubro Limited vs. Union of India 2009 (243) ELT 662 (Bom.). It stands held by the Honble High Court that water treatment plant is fabricated at site and erected by embedding in civil work, the same becomes immovable property and does not attract excise duty. By following the said decision, we find no merit in the Revenues appeals and reject the same.
(Archana Wadhwa) Judicial Member (Mathew John) Technical Member scd/