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TMI Blog1985 (8) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... the Item specifies Totalisers and not Totalizators or Totalizator system and that three might be different. On this doubt being expressed by the Bench, Shri M. Chandrasekharan, learned Counsel for the appellants, stated that this was not one of the grounds he urged against the impugned order. We, therefore, do not examine this question. 3. The present demand is the outcome of visit dated 21-7-1977 by the Superintendent (Prev.) to the appellants premises. The Superintendent saw the Control Panel Boards installed in the premises, namely, Quinella control Panel Boards, Forest control panel boards. Win and place control panel board and Win and place control panel Board (for Rs. 50 tickets). The Panchnama made on the same date by the Supdt. Central Excise contains a description of these boards and inter alia states that in the opinion of the Supdt. the boards and the punching machines are different parts of Totalizator (Totaliser) and they are dutiable under Central Excise Tariff and that they are said to have been assembled by the appellants in the years 1974 and 1975. The Panchnama further recites that the Supdt. seized the control panel boards with relays etc. and recording pane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. In appeal, the Board of Excise and Customs by order dated 31-12-1981 partly allowed the appeal by ordering the exclusion from the value of the system the value of civil work and generator motor, in addition to the deduction of the cost of paper rolls and tickets ordered by the Collector of Central Excise. The redemption fine in lieu of confiscation was reduced from Rs. 2 lakhs to Rs. 10,000 and penalty of Rs. one lakh was remitted in full. Aggrieved by the decision, the appellants have filed appeal to the Tribunal. 4. Before us Shri N.N. Reddy, Secretary of the appellant, has filed an affidavit explaining the functions of the system in question. This is pursuant to direction of the Bench. 5. At the hearing of the appeal Shri M. Chandrasekharan argued that the Totalizator system was erected on the appellants premises from components which had either paid duty or in respect of which there was presumption of duty having been paid. The only components fabricated by the appellants were panel boards which were not by themselves liable to duty under Tariff Item 33- D. The erection of the system was as a result of civil work and a lot of cabling and wiring. It was thus perman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not time-barred and invoking the higher time-limit of five years was fully justified. He strongly defended the orders passed by the lower authorities. 7. We have carefully considered the arguments advanced by the parties. We will first deal with the question whether as a result of erection work goods came into existence. The Collector of Central Excise-the man on the spot who had opportunity to himself examine the system-in his order inter alia (para 10 of the order) observes as follows : I do not agree that the cost of civil works and the cost of the machines like the generator and other machines in the system will not be liable to be included in the assessable value. It is difficult to see why they should not be, because the totalisor or totalizator cannot work would not have come into being as a complete integral item without the civil works and the generator. Without the civil work the different components would not have been assembled and without the generator the completed totalizator cannot work or perform its work. In dealing with another context the Collector s observations are material for decision of the question whether the system is goods . The observations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily come to the market to be bought and sold . The above proposition implies that it is only a movable which could fulfil these requirements. The decision more appropriately applicable for decision of the point in the present case would be -STC v. M.P. Electricity Board-AIR 1970 S.C. 732 wherein it has been held that to be called goods an article, tangible or intangible, should be movable. In the light of these decisions, the totalizator system which has been erected at site and is permanently fixed to earth and in respect of which the Collector does not use the word manufacture but describes the same as constructed or erected cannot be called to be movable and hence cannot be held as goods . 9. Section 3 of the Central Excises and Salt Act, 1944, inter alia provides for levy and collection of prescribed duty of excise on all excisable goods other than salt produced or manufactured in India. In view of the foregoing finding that the totalizator system is not goods no central excise duty can be levied on the system. The order, therefore, demanding duty on the totalizator system which, as already said, is permanently fixed to earth through civil works would have to be set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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