2004 (10) TMI 365 - AT - Central Excise

Issues:
1. Waiver of pre-deposit of duty and penalty.
2. Classification of goods under Chapter Sub-Heading 8525.00.
3. Applicability of extended period of limitation.
4. Prima facie case for waiver based on immovability of equipment.
5. Comparison with similar cases and dropped proceedings.

1. Waiver of Pre-deposit of Duty and Penalty:
The applicants sought waiver of pre-deposit of duty amounting to Rs. 3,91,33,620/- and penalties imposed under Rule 209A. The demand was confirmed on 'Base Station Controller' (BSC), 'Base Transceiver Station (BTS), and 'Mobile Switching Centre' (MSC) under Chapter Sub-Heading 8525.00. The Tribunal considered the arguments and decided to waive the pre-deposit of duty and penalties pending the appeals, acknowledging a strong prima facie case presented by the applicants.

2. Classification of Goods under Chapter Sub-Heading 8525.00:
The issue of whether the BSC/BTS were liable for excise duty or classified as immovable property was crucial. The Tribunal referenced the Apex Court decision in Triveni Engineering & Inds. Ltd. v. CCE [2000 (120) E.L.T. 273 (S.C.)] to support the argument that the equipment, once installed, could not be easily removed and shifted to another location without dismantling. This immovability aspect influenced the decision to waive the pre-deposit.

3. Applicability of Extended Period of Limitation:
The demand in question covered the period from October 1998 to April 2003, with the show cause notice issued on 16-10-2003. The Tribunal noted the application of the extended period of limitation in this case, which was a significant factor in the overall decision-making process.

4. Prima Facie Case for Waiver Based on Immovability of Equipment:
The Tribunal found that the immovability of the BSC/BTS equipment, as highlighted by the applicants, was a compelling argument for granting the waiver. The necessity to dismantle the equipment into various components before shifting it supported the contention that these items should be considered as immovable property rather than goods liable for excise duty.

5. Comparison with Similar Cases and Dropped Proceedings:
An essential aspect of the decision was the comparison with similar cases where proceedings against other companies carrying out similar installation activities were dropped by different Commissionerates. The Tribunal considered the orders dated 30-7-2004, 24-12-2003, and 5-12-2003, which showed that demands raised on identical items against other companies had been dropped. This comparison played a crucial role in the Tribunal's decision to waive the pre-deposit of duty and penalties in this case.

The appeals were scheduled for a hearing on 12-1-2005, with the Tribunal granting the waiver and staying the recovery of duty and penalties pending the appeals based on the presented arguments and comparisons with similar cases where demands were dropped.

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