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TMI Blog2001 (10) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... red by them on payment of duty; that they sometime get Orders for erection and installation of weigh brigde at the site of customers according to their specifications and dimensions; that M/s. Virender Agro Chemicals Ltd. placed on Order with them for erection of one number of electronic weigh bridge Pit type, 30 TX 5 kg. capacity having platform size 9m x 3m with industrial terminal printer; that the said Order was executed by first sending the parts/components of weigh bridge manufactured by them on payment of duty; that pit was dug up to a depth of approximately 8 to 9 feet deep, concrete foundation was made on which pillars made of concrete and reinforcement bars were built by the Customer; load cell basis were grouted and embedded whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) wherein it was held that Turbo-Alternator was immovable. He also mentioned that the finding of the Commissioner (Appeals) in the Impugned Order, that electronic weighing bridge can be dismantled, sold and reinstalled is arbitrary and without placing any evidence on record; that in fact the concrete foundation has to be broken for taking out the load cell basis, load cells, platform etc.; that the ratio of the decision in the case of Sirpur Paper Mills v. C.C.E., 1998 (97) E.L.T. 3 (S.C.) is not applicable. He relied upon the decisions in following cases : (i) JST Service Engineering Services CCE, 2001 (133) E.L.T. 350 (T) = 2001 (46) RLT 1 (CEGAT) (ii) CCE v. Budhewal Co-Operative Sugar Mills Ltd., 2001 (133) E.L.T. 337 (T) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sembly, a new product known in the market and known under the excise item weigh bridge comes into being and the appellant will become a manufacturer of that product and as such liable to duty. On the question of marketability, the learned S.D.R. submitted that what are being embedded into concrete foundation are steel plates and not the machines so that the weigh bridge functions properly and with a view to avoid any damage to the system. He relied upon the decision in the case of TTG Industries Ltd. v. C.C.E. Raipur, 1996 (82) E.L.T. 517 wherein the Hydraulic Mudgun and Tap Mole Drilling Machine assembled and commissioned at site were considered as goods and not immovable property. The learned SDR also contended that the weigh bridge c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence in that behalf was brought on record . A decision cannot be relied upon in support of a proposition that it did not decide . The Constitutional Bench of the Supreme Court in C.C.E., Jaipur v. Man Structurals Ltd. - 2001 (130) E.L.T. 401 (S.C) = 2001 (44) RLT 113 (S.C.) has held that it is to be determined whether the structurals that the Department sought to make exigible to excise duty were new, identifiable goods which were produced as a result of manufacture or process and which are marketable . Thus the test of marketability or capability of being marketed is to be applied before any goods can be held to be exigible to excise duty. 6. From the process outlined by the learned Advocate, it is apparent that the weigh bridge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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