Custom, Excise & Service Tax Tribunal
The Commissioner Of Central Excise vs M/S. Hvac Systems (Pvt.) Ltd on 29 February, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Appeal No: E/627/2005 (Arising out of Order-in-Appeal No: 56/2005 CE dated 17.6.2005 passed by the Commissioner of Central Excise (Appeals-II), Bangalore.) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? The Commissioner of Central Excise Bangalore-III Commissionerate Bangalore. Appellant Vs. M/s. HVAC Systems (Pvt.) Ltd. Respondent
Appearance Mr. T. C. Raja Dass, Authorised Representative (SDR) for the Revenue.
None - for the Respondents.
CORAM DR. S.L. PEERAN, HONBLE MEMBER (JUDICIAL) MR. T. K. JAYARAMAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 29.02.2008 Date of decision: 29.02.2008 ORDER No._______________________2008 Per Dr. S. L. Peeran (Oral) Revenue is aggrieved with Order-in-Appeal No.56/2005 CE dated 17.6.2005 by which the Commissioner (A) has held that the ducts which are used for installation of heat ventilation and Air Conditioning systems are not goods and they become part and parcel of the immoveable property. The findings recorded are reproduced herein below.
2. Revenue has taken ground that the ducts are none other than structures. They are marketable, although they are fabricated at site.
3. The learned JDR rely on the judgment rendered by Larger Bench in the case of Mahindra & Mahindra Ltd. Vs. CCE - 2005 (190) ELT 301(Tri.-LB) wherein parts of iron and steel structures have been considered as goods and not as an immoveable property. He also submitted that ducts are marketable and they have to be considered as goods and the findings recorded by the Commissioner (A) are erroneous on facts. He draws his conclusion from the Order-in-Original that records that the goods have come in the form of hollow profiles and only when they are fixed to Air Conditioning System they become immoveable property. He prays for reversal of the order.
4. The respondents are not present despite several notices served on them. The Commissioner has served notice on the respondents and the proof of service has been produced. Hence, the matter is taken up for decision on merits.
5. We have considered the judgment of Mahindra & Mahindra Vs. CCE (supra) and find that the ruling pertains to parts of iron / steel structures. The said goods are different from the goods in question. The Commissioner (A) has analyzed that the ducts came into existence and also noted that they do not come in the form of hollow profiles to fall under the Heading 7304.10, as these are not made by processing of drawing, forging, or extrusion but they are brought into existence by sheet metal fabrication work. The sheet metal fabrication is done along with the immoveable property. The Commissioner (A) has relied on the judgment rendered in the case of CCE, Jaipur Vs. Man Structurals Limited reported in 2001 (130) ELT 40 (SC). In the grounds of appeal, it is stated that the Commissioner (A) has erred in relying upon the ratio of the cited judgment and not following the Board Circular No.58/1/2002 CX dated 15.12.2002. The Commissioner (A) has noted that the Board Circular has to be applied based on the facts of each case. He has noted that in the present case the ducts came into existence at site and they are not marketable. We do not find any infirmity in the order. The order is legal and proper. There is no reason to interfere with the same. There is no merit in this appeal and the same is rejected.
(Pronounced and dictated in open Court) (T.K. JAYARAMAN) Member (T) (S.L.PEERAN) Member (J) //rv//