9911796707
TMI Blog1997 (4) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... ure from outside other machines/component parts and supply them along with their own manufactured items. These are assembled and installed in the premises of their customers. It was found by the Central Excise Officers that the price realised by the appellants from their customers was more than the price of goods cleared from their factory on which they had paid duty. Show cause notice dated 6-10-1986 was issued by the Superintendent covering the period March, 1986 to August, 1986 alleging that on the differential value involved amounting to Rs. 2,63,93,818.39, duty payable at 15% worked out to Rs. 39,59,072.70. In addition duty of Rs. 8,25,000/- was shown as short paid on account of wrong availment of small scale industry Exemption Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers premises for assembling and installation. These are installed on sites prepared by the customers with proper foundations. The complete plant comes into existence only at such sites and at that time they are attached to the floor. They are thus not movable for being considered as goods for levy of excise duty. In this connection, learned Counsel referred to a decision of the Bombay High Court in their own case on a Sales Tax matter. The Sales Tax Tribunal had held that their transactions for supply, creation and installation of Plastic machineries were not of sale but works contract. On a Reference Application moved by the State Government the Tribunal referred the question to the High Court. Taking note of several judgments of the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be dismissed. 5. We have considered the submissions and perused the record as well as the decisions cited. We find that the Collector had, while taking note of the contentions raised before him by the appellants that the Collector (Appeals) had decided the same issue in their favour for certain earlier period and the department had also accepted the same and had in fact paid them the consequential refund observed that such decisions which were in the context of the Tariff entry as in force at that time before the coming into force of the new Tariff containing a specific Heading 84.77 covering Machinery for working rubber or plastics or for the manufacture of products from these materials. In view of this specific entry the Collector has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controlled by the Tariff which is only for determining the rates of duty only after identity as excisable goods is established. The entry machinery for working rubber or plastics or for the manufacture of products from these materials in Tariff Heading 8477.00 will apply only to such machinery as are excisable goods. It is here that the cited decisions apply. The recent judgment of the Supreme Court in Mittal Engineering Works (P) Ltd. has been referred to above. This has been followed by the Supreme Court in Collector of Central Excise, Hyderabad v. Hyderabad Race Club - 1996 (88) E.L.T. 673 (S.C.). The Supreme Court in this case was concerned with the appeal the Collector against the Tribunal decision reported in [1988 (34) E.L.T. 347 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... movable and hence cannot be held as goods . In regard to another decision of the Tribunal in 1983 (12) E.L.T. 825 - Gujarat Machinery Manufacturers Limited v. Collector of Central Excise, Baroda holding that the Pilot Plant is a Chemical Plant fixed to the ground and is in the nature of immovable property which cannot go to the market for being bought and sold and cannot be considered as goods liable to duty, the Supreme Court has rejected Collector s appeal as reported in 1989 (44) E.L.T. A58. In view of the series of these decisions, Plant attached to the earth will be non-excisable whether under the old or new Tariff. 6. We find that the Collector has, as already noted by us, decided the matter only with reference to the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
