2018 (6) TMI 922 - AT - Central Excise

Excisability/movability - Fired Heater fabricated at site - Held that - The fire heater came into existences fixed to the ground in situ . The impugned order does not deal with this assertion end presumes that the said fire heater was movable and marketable. There is no evidence brought forward by Revenue that the such fire heater was movable. Revenue has relied on the decision of the Hon ble High Court of Patna in the case of Tata Iron & Steel Co. 1987 (3) TMI 127 - PATNA HIGH COURT . The facts in the said case related to taxability of crane cleared in completely knocked down condition from one premises to another. The facts in the said case are totally different. Since Revenue has failed to produce any evidence regarding movability and marketability of the said fire heater, demand do not sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Demand of duty on 'Fired Heater' fabricated at site.

Analysis:
The appeal was filed against an order confirming the demand of duty on a 'Fired Heater' fabricated at the site. The Commissioner confirmed the demand on the basis that the Fired Heater was an independent equipment entirely manufactured at the site, distinct from the inputs used in its fabrication. The Commissioner relied on the contract clause regarding excise duty on site fabrication and the Tribunal's judgment in a similar case. The appellant argued that the Fired Heater was not movable as it was attached to structures at the site. The appellant provided a certificate from a Chartered Engineer supporting this claim. Additionally, the appellant submitted a technical note detailing the fabrication process of the Heater on-site, emphasizing its immovable nature.

The Revenue relied on the impugned order and a previous decision along with a circular. The Tribunal considered the assertions made by the appellant regarding the immovability of the Fired Heater due to its size and construction on-site. The Tribunal noted that the impugned order did not address this assertion and presumed the Heater to be movable and marketable. Since the Revenue failed to provide evidence supporting the movability and marketability of the Heater and the cited decision was not applicable to the current case, the Tribunal allowed the appeal, emphasizing the lack of evidence regarding the nature of the Fired Heater.

In conclusion, the Tribunal found that the Fired Heater was an immovable structure fixed to the ground 'in situ' based on the appellant's assertions and the lack of evidence provided by the Revenue. The decision highlighted the importance of evidence in determining the taxability of goods and concluded that the demand of duty on the Fired Heater fabricated at the site was not justified, ultimately allowing the appeal.