2002 (3) TMI 127 - AT - Central Excise

Summary

Issues involved: Whether the vacuum Arc Degassing (VAD) erected and installed by M/s. Otto India Pvt. Ltd. is exigible to excise duty.

Analysis:
The appeal raised the issue of whether the VAD plant is liable for excise duty. The appellant, M/s. Otto India Pvt. Ltd., engaged in setting up industrial plants on a turnkey basis, argued that the VAD system is a complex plant comprising multiple units and machinery, firmly anchored to the ground. The appellant contended that the VAD plant is immovable property and not liable for excise duty. The appellant challenged the imposition of excise duty and penalties by the Commissioner. The appellant's representative cited legal precedents and argued that the VAD plant's marketability cannot be presumed solely based on an agreement for design and erection. The appellant emphasized that the VAD plant, being immovable property, does not fall under the definition of "goods" for excise duty purposes. Reference was made to the Supreme Court judgment in Triveni Engineering and Industries Ltd. v. C.C.E., along with a Tribunal decision regarding Electric Arc Furnace as precedents supporting the appellant's position.

The appellant further argued that the impugned order wrongly concluded that the VAD system's mobility made it non-immovable property, emphasizing that the focus should be on the entire VAD plant's movability. The appellant also contended that the demand for duty was time-barred due to no deliberate suppression of facts. In response, the Revenue representative reiterated the findings in the impugned order, emphasizing the mobility of the VAD unit and the absence of duty payment procedures during manufacturing and removal.

In its judgment, the Tribunal considered the arguments from both sides. The Tribunal applied the test of marketability to determine the VAD plant's liability for excise duty. Referring to legal precedents, including the Supreme Court's guidance on marketability, the Tribunal concluded that the VAD plant, due to its size and nature, cannot be removed and sold as a whole in the market. The Tribunal highlighted that dismantling the plant would result in the recovery of parts and components only. Additionally, the Tribunal noted a clarification by the CBEC regarding the removal and sale of goods without dismantling. Based on these considerations, the Tribunal held that the VAD plant is not excisable goods liable for excise duty, setting aside the impugned order and allowing the appeal. The cross-objections filed by the Revenue were also disposed of due to no new points raised therein.