2004 (5) TMI 77 - SC - Central Excise

Hydraulic Mudguns and Tap Hole Drilling machines - Dutiability of - Immovable property - Demand - Limitation - Suppression

Summary

Issues Involved:
1. Whether the erection of Hydraulic Mudguns and Tap Hole Drilling Machines at the site resulted in the creation of excisable goods or immovable property.
2. Whether the demand for duty was barred by limitation due to the alleged suppression of facts by the appellant.
3. Whether the penalty imposed on the appellant was justified.

Issue-wise Detailed Analysis:

1. Erection Resulting in Excisable Goods or Immovable Property:
The appellant argued that the Hydraulic Mudguns and Tap Hole Drilling Machines erected at the Bhilai Steel Plant were immovable property and thus not subject to excise duty. The facts revealed that the machines were assembled and erected on a concrete platform 25 feet above ground level, making it impossible to move them without dismantling. The judicial member of the CEGAT agreed with the appellant, citing the Supreme Court's decision in Municipal Corporation of Greater Bombay v. Indian Oil Corporation Ltd., which established that if an item must be dismantled and reassembled to be moved, it is considered immovable property. Conversely, the technical member and the third member held that the machines were movable and thus excisable, relying on Narne Tulaman Manufacturers Pvt. Ltd. v. Collector of Central Excise. However, the Supreme Court clarified in Mittal Engineering Works (P) Ltd. v. CCE, Meerut that the Narne Tulaman case did not address whether the items were movable or immovable. Ultimately, the Supreme Court concluded that the machines were immovable property, as they were permanently erected and could not be moved without dismantling.

2. Demand for Duty Barred by Limitation:
The appellant contended that the demand for duty was barred by limitation, as they had disclosed all relevant facts. The technical member found that the appellant had not informed the Indore Collectorate about the manufacturing activities at Bhilai, thus suppressing material facts. The judicial member disagreed, stating that there was no suppression and the demand was time-barred. The Supreme Court sided with the technical member, noting that the appellant did not file the necessary classification list with the Central Excise Officers having jurisdiction over Bhilai and did not comply with other Excise formalities. Therefore, the demand was not barred by limitation, invoking the extended period under Section 11A of the Central Excise Act.

3. Justification of Penalty:
The penalty of Rs. 8 lakhs was imposed on the appellant for suppressing facts and failing to obtain a Central Excise license and maintain statutory records. The judicial member found that the penalty was not sustainable due to the absence of suppression. The technical member, however, justified the penalty, citing the appellant's failure to comply with Excise formalities. The Supreme Court, agreeing with the technical member, upheld the penalty, noting the appellant's non-compliance and suppression of material facts.

Conclusion:
The Supreme Court allowed the appeal, setting aside the CEGAT's order and holding that the appellant was not liable to pay excise duty on the Hydraulic Mudguns and Tap Hole Drilling Machines, as they were immovable property. Consequently, the penalty of Rs. 8 lakhs was also quashed. There was no order as to costs.