2011 (10) TMI 574 - AT - Central Excise

Summary

Issues: Stay applications for early hearing, waiver of pre-deposit of duty, interest, and penalties

Stay Applications for Early Hearing:
The applicants filed applications for early hearing of their stay applications due to the Revenue's pressure for recovery. However, since the stay applications were already listed for hearing, the request for early hearing was deemed infructuous and dismissed.

Waiver of Pre-deposit of Duty, Interest, and Penalties:
The applicants, involved in manufacturing Chlorination Plants, sought waiver of pre-deposit of duty amounting to Rs. 88,15,196, interest, and penalties. The dispute arose from whether the plants, permanently embedded in the earth after assembly, should be considered movable property liable for duty. The applicants argued that certain parts of the plant were cleared after duty payment, and service tax was charged for erection and commissioning. The Revenue, citing a Supreme Court case, contended that the plants were not permanently attached to the earth and should be considered movable. However, the Tribunal found that the plants were permanently attached to various sites and not intended for marketability without dismantling. Relying on legal precedents, including the requirement for goods to be marketable without dismantling, the Tribunal held that the applicants established a strong case for waiver of pre-deposit. Consequently, pre-deposit of duty, interest, and penalties were waived, and recovery stayed during the appeal proceedings.

Conclusion:
The Tribunal allowed the stay petitions, granting the waiver of pre-deposit and staying the recovery of duty, interest, and penalties. The judgment highlighted the importance of the marketability test and the permanency of attachment to earth in determining the liability for duty on the Chlorination Plants.