1997 (4) TMI 224 - AT - Central Excise

Summary

Issues:
1. Jurisdiction of Assistant Collector to demand duty beyond six months under Section 11A(1) of Central Excise Act, 1944.
2. Leviability of duty on the entire value of contracts for manufacture, supply, and installation of plastic processing plants.
3. Classification of plant as movable or immovable for levy of excise duty.
4. Consideration of previous decisions and judgments in determining excisability of plant.
5. Failure to consider affidavit regarding the immovable nature of the plant by the Collector.

Analysis:

1. The issue of jurisdiction arose regarding the Assistant Collector's authority to demand duty beyond six months under Section 11A(1) of the Central Excise Act, 1944. The Collector of Central Excise (Appeals) set aside the duty demand, citing lack of jurisdiction by the Assistant Collector. However, the Collector of Central Excise, Bombay-II confirmed the duty demand, leading to the appeal challenging this decision.

2. The question of leviability of duty on the entire value of contracts for the manufacture, supply, and installation of plastic processing plants was raised. The appellants argued that the plant components supplied by them, along with their own manufactured items, were not movable goods for excise duty purposes. They referred to a previous Sales Tax Tribunal decision that their transactions constituted works contracts, not sales, which supported their position.

3. The classification of the plant as movable or immovable for excise duty levy was crucial. The appellants contended that the plant, once installed at customers' premises, became immovable as it was attached to the earth and could not be moved. They referenced a Supreme Court decision stating that erection and installation of a plant is not excisable, supporting their argument.

4. Previous decisions and judgments played a significant role in determining the excisability of the plant. The Collector considered the Tariff entry and specific Heading 84.77 covering machinery for working rubber or plastics. The Supreme Court's rulings on goods being movable and marketable were discussed, emphasizing that goods attached to the earth and immovable do not satisfy the criteria for excisability.

5. The Collector failed to consider the affidavit submitted by the Managing Director of the appellants regarding the immovable nature of the plant. The affidavit stated that the plant could not be cleared from the factory and was attached to the earth at customers' premises. This discrepancy in factual findings required further investigation, leading to the decision to set aside the Collector's order and remand the case for a fresh decision after considering all relevant factors and legal principles.

In conclusion, the appellate tribunal allowed the appeal on the grounds of the Collector's failure to consider crucial evidence and legal principles, remanding the case for a new decision after proper investigation and application of the correct law.