1999 (11) TMI 459 - AT - Central Excise

Summary

Issues:
1. Rectification of mistake in the Final Order.
2. Interpretation of marketability for levy of Central Excise duty.
3. Applicability of previous judgments to the current case.

Issue 1: Rectification of mistake in the Final Order
The applicants filed a ROM application claiming a mistake in the Final Order, stating that the Apex Court's decision regarding erection from bought-out items not resulting in immovable property was not considered. They argued that duty was demanded only on certain items fabricated on-site, not on the plant itself, which was embedded. The applicants requested the order to be rectified by recalling it.

Issue 2: Interpretation of marketability for levy of Central Excise duty
The JDR argued that for Central Excise duty to be levied, goods must be marketable. He emphasized that the goods in question were not brought to the market for sale and were embedded in the earth, making them non-marketable. He cited judgments supporting the requirement of marketability for levy of duty and contended that the duty was demanded on specific parts fabricated on-site, not on the entire plant.

Issue 3: Applicability of previous judgments to the current case
The Advocate for the Respondents argued that the Apex Court's decision in the Sirpur Paper Mills case, regarding marketability and embedment to earth, was not applicable to their case involving a boiler house plant. He referenced the decision in CCE v. Hyderabad Race Club, emphasizing that certain items listed by the department were parts fabricated on-site and used for the manufacture of the boiler house, which should not be dutiable as it was embedded in the earth. The Advocate distinguished previous cases cited by the appellant and requested the ROM petition to be rejected.

In the final decision, the Tribunal noted that goods manufactured for replacement and maintenance of plant and machinery are not dutiable. Referring to the Apex Court's ruling on Mono Vertical Crystalliser not being considered goods under the Central Excise Act, the Tribunal concluded that the items listed in the case were also not dutiable. The Tribunal found no merit in the ROM application, rejecting it based on the inapplicability of the Apex Court's decision in the Sirpur Paper Mills case to the current circumstances.