1999 (9) TMI 289

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..... property are not liable to central excise duty. 2. Learned DR appearing on behalf of the Revenue submits that the entire water treatment plant is assembled first, and thereafter the plant was fixed on the ground. He submits that in the event of shifting of the plant only civil construction is to be broken and the entire system can be taken out and therefore it is not immovable property. He submits that the respondents manufacture some of the items and some are purchased from the market and thereafter this water treatment plant is assembled at the site. Hence, water treatment plant is liable to pay duty under Chapter Heading 84 of the Central Excise Tariff. He relied upon the decision of the Hon ble Supreme Court in the case of Sirpur Pape .....

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..... s. He further submits that the Hon ble Supreme Court in the case of Mittal Engg., 1996 (88) E.L.T. 622 (S.C.) = 1997 (68) ECR 13 held that assembly, installation and erection of machinery, cleared in knocked down condition, at site in different sections, attached to earth by foundation, thus becoming immovable do not specify the test within the meaning of Act, nor it can be said that these goods are being capable of being bought or sold. He also relied upon the decision in the case of Tata Robin Fraser Ltd. v. Collector of Central Excise, 1990 (46) E.L.T. 562 (Tribunal) and submits that the Tribunal in this case held that Project by itself being an immovable property not goods and hence not liable to pay duty. He further submits that in .....

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..... a marketable commodity and embedding it in a concrete base to ensure its wobble free operation does not make it immovable property. In the present case the Revenue is admitting that various tanks and vessels were embedded to earth at the site and issue before us is excisability of the whole of the plant and not of a particular machine. Therefore, ratio of the decision relied upon by the Revenue is not applicable to the facts of the present case. 5. The Hon ble Supreme Court in the case of Mittal Engg. Works P. Ltd., 1996 (88) E.L.T. 622 held that the basic test of levying duty under the Act is two-fold. One, that any article must be goods and second, that it should be marketable or capable of being brought to the market. Goods which are .....

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