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TMI Blog2009 (4) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... claim that they had not wilfully suppressed the fact of the impugned activity from the Department. We, therefore, hold that the demand of duty on the signages has been validly made invoking larger period. Penalty imposed in accordance with the provisions of Section 11AC is upheld. – penalty however under Rule 173Q of erstwhile CER,1944, is uncalled for. - E/155-156/2005 - 445-446/2009 - Dated:- 20-4-2009 - Ms. Jyoti Balasundaram, Vice-President and Shri P. Karthikeyan, Member (T) Shri P.C. Anand, Consultant, for the Appellant. Shri R.P. Meena, SDR, for the Respondent. [Order per: P. Karthikeyan, Member (T)]. - On 23-1-2000, following intelligence, officers of the Department visited the premises of M/s. Virgo Industries (Engineers) Pvt. Ltd. (hereafter, Virgo) and examined the records. It was observed that Virgo had been manufacturing and supplying signages (illuminated signs) under a contract with M/s. Indian Oil Corporation Ltd. (IOC) and had erected them at the retail outlets of IOC located at various places in the south. As it appeared that Virgo had undertaken manufacture of excisable goods without following central excise formalities, the officers seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t him. During hearing the learned counsel for the appellants submitted that in the light of the Board's Circular No. 58/1/02-CX., dated 15-1-2002 no duty was payable on signages even if the same were cleared from the factory in CKD or unassembled form as the final product was immovable and not goods. He also relied on the following judicial authorities : (i) Goldstone Engineering Ltd. v. Union of India - 2005 (181) E.L.T. 11 (AP) (ii) Commissioner of Central Excise, Chennai v. India Pistons Ltd. - 1998 (104) E.L.T. 494 (Tribunal) (iii) Collector of Central Excise, Bhubaneswar v. Radiant Electronics Ltd. - 1996 (85) E.L.T. 102 (Tribunal) (iv) Triveni Engineering Indus. Ltd. v. Commissioner of Central Excise - 2000 (120) E.L.T. 273 (S.C.) (v) Hyderabad Race Club, Malakpet, Hyderabad v. Collector of Central Excise - 1986 (23) E.L.T. 274 (Tribunal) 3. We have also heard the learned SDR who reiterates the reasoning followed by the Commissioner in the impugned order. He relies on the Tribunal's decisions in Cheran Spinners Ltd. v. Commissioner of Central Excise, Coimbatore - 2008 (231) E.L.T. 315 (Tri.-Chennai) and Commissioner of Central Excise, Chennai v. Aluplex India L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that Virgo manufactured signages sourcing materials from vendors, specified by IOC and RITES engineer inspected the signages assembled to verify if the same conformed to the specifications stipulated by IOC in their work order. He confirmed that all the signages supplied by Virgo were actually manufactured and assembled at Virgo factory only. He further stated that there was 'no chance of saying' that only parts of signages were taken to IOC outlets and assembled at site. Assembled signages were dismantled for convenience of transportation to the respective sites where they were reassembled. 5.1 The Commissioner found that as per the Mahazar dated 23-8-2000 drawn at the premises of Virgo, 10 numbers of main signages and 13 numbers of facility signages in fully assembled condition along with lighting poles, FRP components and poly carbonate boards were seized from the premises of Virgo. This showed that signages were assembled at Virgo's premises before dismantling and clearing them to the respective sites. He also relied on a few delivery memos, one of which is reproduced below: Delivery Memo 1513 dated 1-3-2000 addressed to M/s. Indian Oil Corporation Ltd. Bangalore Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Name and address of the consignor Virgo Industries (Engineers) Pvt. Ltd. Regd. Off. Poonamallee High Road, Chennai - 84. 2. Name and address of the consignee Virgo Industries (Engineers) Pvt. Ltd. Vijayawada b. Registration Certificate No. APGST No. VJ2/0412/2355/18.3.00 3. Particulars of place i. From which goods are consigned Chennai - 58 ii. To which the goods are consigned at IOCL Vijayawada - Delivery 4. Description of goods consigned Signages 3 Nos. Qty. : 2 MT Value: Rs. 2,00,000/- 5. To whom delivered for transport Pragati Road lines AP02T8721 6. In letter dated 27-2-1999 addressed to RITES Shri Mathew Kuncheria, MD of Virgo stated that 330 signages were to be fabricated, inspected, transported and erected in an year's time. FRP components were assembled in the structure after lighting arrangements were made. Finally the painting work would be taken up. After that it was dismantled, packed and sent to site for erection and commissioning. Further communications addressed to RITES recovered from the premises of Virgo requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alone were manufactured at Virgo premises and the signbages came into existence when the same were erected using also the components received directly at the site from their sub-contractors, the appellants have not succeeded in their effort in view of the documentary evidence pointing to a different factual situation as found by the Commissioner. Moreover the Commissioner has relied on statements of senior Engineers of RITES and IOC to hold that signages are assembled at the factory of the appellants before they are inspected and cleared for erection. Shri Prabhankar Iyer of IOC had categorically stated that after completion of the manufacture/assembly of the signages by Virgo at their factory they would inform RITES for inspection of signages. The deponents are not laypeople but experts and their statements have to be believed. Shri Prasad of RITES had stated that he inspected complete signages at Virgo premises. 8. The second important claim of the appellants is that signages came into existence only after erection and they were immovable and not exigible. If this claim is accepted, the question whether signages were assembled at Virgo before removal or they were assembled for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achine assembled at the factory was attached to a concrete base, the paper machine continued to be goods and subject to excise duty. In Quality Steel Tubes (P) Ltd. v. Collector - 1995 (75) E.L.T. 17 (S.C.) the Apex Court held that goods which were attached to the earth and had become immovable did not satisfy the test of being goods within the meaning of Central Excise Act. It was held that erection and installation of a plant could not be held to be excisable goods. After considering, inter alia, these decisions, the Apex Court held in Triveni Engineering Industries case that installation or erection of turbo alternator on the platform specially constructed on the land could not be treated as a common base; therefore such turbo alternator would be immovable property. And it could not be excisable goods. The Court had found that turbo alternator came into being only when the components steam turbine and alternator were aligned and erected separately on a concrete base specially constructed on the land. The turbo alternator could not be sold without decoupling it into constituent parts. Therefore turbo alternator on erection became an immovable property. We find that in the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is capable of being shifted from one place to another without having to dismantle the same into the constituent components. We have seen the photographs produced by Virgo showing different stages of assembly and erection of signages. Undisputedly signages are capable of being assembled at the premises of the appellants and then transferred to the site of its erection after dismantling the same. The signages do not emerge as an immovable property on assembly or erection. They have base plates of steel with provision to fit them on bolts of the concrete foundation. These are not like a turbo alternator, parts of which are separately aligned and fixed on a concrete base to bring into existence the turbo alternator and could not be removed as turbo alternator as such. In the circumstances we hold that the signages are excisable goods. 11. According to the assessee's claim signages emerge only at the premises of erection. We find that the assessee charges IOC for manufacture, supply, erection and commissioning of signages involved. No separate charges are realized for erection and commissioning as seen from the contract and the accounts of Virgo. This value net of taxes and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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