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TMI Blog2001 (9) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... rting frames consisting of a number of columns were erected bit by bit in the making of which steel materials were permanently welded with each other and the columns were permanently grouted in the civil foundations; that then other structures were erected bit by bit by cutting iron and steel materials as per the requirements; that for collecting dust particles, collecting electrodes were erected inside the structure; and thereafter top frame and bottom frame for discharging electrodes, suspension system consisting of a number of tubes placed and permanently welded with the system, and Rapping system were erected; subsequently Deflector plates were installed in the system at various places; that thereafter other systems such as Honey Comb spleter, Pipe arrangement distributor etc. and high voltage rectifier set, electronic panels and board etc. were installed, connection of inlet of ESP was made with outlet of Air preheater of boiler by M.S. Duching and outlet of ESP was connected with the inlet of I.D. Fan. 2.2 The learned Counsel mentioned that for erection of Conveyor system also, civil foundations were erected, steel structurals were erected on such foundations and columns we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears that the Tribunal did not keep in mind the distinction between a turbo alternator and its components. Thus, in our view, the test of permanency fails. The marketability test requires that the goods as such should be in a position to be taken to the market and sold and from the above findings it follows that to take it to the market, the turbo alternator has to be separated into its components - Turbine and the other alternator - but then it would not remain turbo alternator, therefore, the test is incorrectly applied. 3.2 The learned Counsel also placed reliance on the following decisions. (i) Quality Steel Trubo (P) Ltd. v. CCE - 1995 (75) E.L.T. 17 (S.C.) (ii) Mittal Engg. Works (P) Ltd. v. CCE - 1996 (88) E.L.T. 622 (S.C.) (iii) Fenner India Ltd. v. CCE - 2001 (129) E.L.T. 644 (T) = 2001 (43) RLT 733 in which conveyor system erected at site by using various components was held not to be excisable goods. (iv) Western India Machinery Co. v. CCE - 2001 (133) E.L.T. 574 (T) = 2001 (44) RLT 74 (T) (v) Virdi Brother v. C.C.E. - 2001 (132) E.L.T. 86 4. The learned Advocate also mentioned that the reasonings that both ESP and Conveyor Belt Sys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re always under the bona fide belief that no such duty was payable and this belief was fully supported by the fact that no objection was raised by the Central Excise Authorities. Reliance was placed on the decision in the case of Pushpam Pharmaceuticals Co. v. C.C.E., 1995 (78) E.L.T. 401 (S.C.) and Tamil Nadu Housing Board v. C.C.E., 1994 (74) E.L.T. 9 (S.C.). He added that no penalty can be imposed under Section 11AC of the Central Excise Act nor interest can be demanded under Section 11AB of the Act - as these sections came into effect from 28-9-98, that is long after the relevant period; that penalty is also not imposable under Rule 173Q of the Central Excise Rules as there was no contravention of any provisions of law on their part. 5. Countering the arguments, Shri R.D. Negi, learned SDR, submitted that the parts/components of ESP and Conveyor Belt system were in SKD conditions which constitute the complete machine; that by assembly of these various parts/components, a new product with distinct name, character and use came into existence. He further submitted that the Adjudicating Authority had given an evidence of transferability of ESP; that M/s. ACC Ltd. Kymore transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstallation and erection activities. We relied upon the decision in the case of National Radio and Electronics Co. Ltd. v. C.C.E, Aurangabad, 2000 (115) E.L.T. 335 (S.C.) = 2000 (36) RLT 363 (S.C.) wherein it was held that as an application of mind by the Excise authorities would have revealed to than the fact, there was no suppression of fact on the part of the Appellants. 7. We have considered the submissions of both the sides. It has been decided by the Apex Court since beginning from the case of Union of India v. Delhi Cloth General Mills, 1977 (1) E.L.T. (J 199) (S.C.) that to become goods an article must be something which can ordinarily come to the market to be bought and sold. Again in Bhor Industries v. C.C.E., 1989 (40) E.L.T. 280 (S.C.), the Supreme Court emphasised that marketability is an essential ingredient in Order to be dutiable under the Schedule to Central Excise Tariff Act, 1985. In Moti Laminates Pvt. Ltd. v. C.C.E., 1995 (76) E.L.T. 241 (S.C.), the Apex Court held that the expression produced or manufactured has further been explained.....to mean that the goods so produced must satisfy the test of marketability. Now the Constitutional Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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