Customs, Excise and Gold Tribunal - Mumbai
Asea Brown Boveri Ltd. vs Commissioner Of Customs And Central ... on 15 June, 2001
Equivalent citations: 2001(138)ELT145(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. Appeal permitted to be retained.
2. Duty of Rs.42.55 crores approximately and penalty of Rs. 46.55 crores have been demanded and imposed on the finding of the Commissioner that the applicant manufactured a turbo alternator on which it did not pay the appropriate duty.
3. The applicant entered into a contract with GVK Industries for setting up turbo alternator at the site of the latter at Jegurupadu. It imported a turbine and alternator separately from Germany. IT assembled both these machines together at site in order to create a turbo alternator. The contention of the counsel for the applicant is that the applicant's case is clearly covered by the ratio of the Supreme Court's judgment in Triveni Engineering & Industries Limited Vs. CCE2000 (120) ELT 273. The Supreme Court found in that judgment that the turbo alternator which come into existence as a result of the coupling and alignment of the turbine and alternator could not be removed from the site at which it came into existence to another site without losing its identity as a turbo alternator and held that therefore turbo alternator is not marketable, and hence not goods liable to excise duty.
4. When confronted with this judgment the Commissioner says that he has found that another manufacturer, Birla Periclase, removed a turbo alternator from the site of its manufacture. He therefore concludes that it is possible that turbo alternator could be removed as such. Relying on the observation of the Supreme Court in Triveni Engineering & Industries Ltd. Vs. CCE that movability has to be decided on each case, he concludes that the turbo alternator under consideration is movable.
5. There are, prime facie, two serious objections to accepting this line of reasoning. First is that the report of the Assistant Commissioner, Vishakhapatnam, on whom he relies with regard to the movability of the machines made by Birla Periclase, says that "equipment were latter dismantled and knocked down suitably for transportation". If that is the case, what was transported was not a turbo alternator. Hence, the turbo alternator in that case has not been shown to be movable. It would be immovable in that form i.e. as a turbo alternator. This is the test that the Supreme Court applied in Triveni Engineering & Industries Vs. CCE. The second objection is that if the Commissioner finds that the facts of Birla Periclase, is identical, then the turbo alternator considered by the Supreme Court has to be distinguished with the turbo alternator under consideration or with the Birla Periclase. The Supreme Court in one case found the turbo alternator not movable as such. The Commissioner has found the turbo alternator of Birla Periclase to be movable. Since each issue is to be decided on its own facts he would have to show that the turbo alternator that he dealt with was identical with the turbo alternator dismantled by Birla Periclase or distinguishable from that considered by the Supreme Court. There is not the slightest attempt to do this.
6. Accordingly, we find a strong prima facie case in favour of the applicant and waive deposit of the duty demanded and penalty imposed, and stay their recovery.
7. On accepting the prayer made by the counsel for the applicant for out of turn hearing we list the appeal for hearing on 21st August, 2001.