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TMI Blog2001 (9) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of storage tanks and other connected works at the premises of M/s. Hindustan Petroleum Corporation Ltd. (HPCL). 2. They have undertaken the following work activities at M/s. HPCL, while executing the said work of fabrication, erecting of storage tanks out of the steel plates supplied by M/s. HPCL at free of cost : - 1. Procurement of material from M/s. HPCL 2. Marking cuttings as per drawings 3. Bending after cutting 4. Lifting as per markings - welding as per drawings and as per marking 5. Fabrication of storage tanks 6. Painting. The execution and fabrication of storage tanks by M/s. Sharp Tanks at M/s. HPCL site, Kakinada was completed and handed over to M/s. HPCL on 26-5-1997. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to existence any goods as defined in the sale of Goods Act 1930 and therefore the charges made by the Revenue department are not sustainable. 4. The marketability is an essential ingredient for dutiability, even if the goods are specified in a tariff schedule or are captively consumed and the burden to prove the marketability is on the department and in support of their argument they cited some case laws. 5. They further stated that the tank permanently built on several feet deep, concrete are deeply embedded and lot of civil work has been done to make it secure and to avoid oil leakage. The inlet and outlet valves and pipes attached for filling and pumping out oil are permanent features never intended to be removed nor can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Corporation of Greater Bombay and others v. Indian Oil Corporation Ltd. [1991 Suppl. (2) Sec. 18] and thus withstand the test of movability. 6. Ld. Consultant Shri Gurusharan Singh submits that the Tribunal in the latest judgement in the case of JST Engineering Services v. CCE, Jamshedpur as reported in [2001 (133) E.L.T. 350 (Tribunal)] = 2001 (46) RLT (CEGAT, Delhi)] has examined a similar issue pertaining to erection of storage tanks at site carried out in the like manner as done by the appellant. In the light of several judgments of the Supreme Court and other judgments the Tribunal has categorically held that on such erection the storage tanks gets attached to the earth and becomes an immovable property and hence not excisable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nks have assumed characteristics of goods which specifies the test laid down by the Apex Court in the case of Triveni Engineering. 9. Ld. DR submits that the submissions made by the appellants that fabrication of the welding steel storage tanks is being carried out piece by piece along with the civil construction to become immovable property has been contested by the Department and not agreed to. In view of this appellants should be put into terms as the judgement cited by ld. Consultant is clearly distinguishable. 10. On a careful consideration of the submissions made by ld. Consultant, we notice from the extracted portion of the reply to the show cause notice that the appellants had categorically taken up a stand that they were er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be verified in the light of JST Engineering Services and therefore in absence of all the material facts, the appeal cannot be allowed. 13. On a careful consideration, we agree with ld. DR that the appeal cannot be allowed as in this particular case the ld. Commissioner has although held that the tanks are permanently fixed but at the same time he has noted that it is capable of dismantling and re-erecting. This is seriously contested by the appellant s as can be seen from the reply to the show cause notice. The ld. Commissioner has not arrived at a categorical finding on this issue. Therefore, we have to hold that the order is not a speaking order of facts. The facts are required to be verified and the ratio of JST Engineering Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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