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TMI Blog2002 (1) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of electricity at their power plant in East Godavari District, Andhra Pradesh. M/s. GVK had entered into an agreement with M/s. ABB, Germany, parent company of the appellant, in August, 1994, for supply of requisite plant and machinery for setting up of 235 MW combined cycle electric power plant in Andhra Pradesh and had also simultaneously entered into an agreement with M/s. ABB for erection and commissioning of power project at the project site of M/s. GVK. M/s. GVK thereafter executed a Memorandum of Understanding with M/s. APSEB for supply of power generated at the plant. Concessional customs duty certificate for import of plant and machinery along with essential spares for the power plant was granted by the Ministry of Power, Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27-8-1999 was issued to M/s. ABB proposing recovery of Rs. 52.72 crores being Central Excise duty payable on the generating sets, proposing levy of interest as well as imposition of penalty under Sec. 11AC and under Rules 9(2), 52(A) and 173Q of the Rules and proposing confiscation of the goods in question. The authorities also proposed penal action under Rule 209A of the Central Excise Rules on M/s. GVK. The notice was adjudicated by the Commissioner of Central Excise, Visakhapatnam who confirmed the duty demand of Rs. 42,55,38,769/- on the generating sets manufactured by M/s. ABB at the site of M/s. GVK, applying the rate of duty of 10% on Turbo generating sets and 13% on Steam generating sets, directed payment of interest in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismantled into its components - steam turbine and alternator. He submits that the above decision is applicable on all fours to the facts of the present case having regard to the identical method of setting up of turbo alternator. He submits that the above decision of the Apex Court has been followed by the Tribunal in several cases and in this connection he cites the decisions of the Tribunal in the case of Wintech Taparia Ltd. v. CCE, Indore [2001 (132) E.L.T. 698], CCE, Chandigarh v. Vardhman Spinning Mills [2001 (132) E.L.T. 663] and Belliss India Ltd. v. CCE, Chennai [2001 (132) E.L.T. 364]. The ld. Counsel next put forth his alternate submission that in the event of it being held that the assembly and erection of turbo alternator resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court judgment in the case of Triveni Engineering and Industries [2000 (120) E.L.T. 273 (S.C.)]. He submits that the Commissioner has recorded a detailed finding on the distinction and difference between the facts of the Triveni Engg. Industries case and the present case and, has therefore, rightly held that the ratio of the Triveni Enggg. Industries judgment cannot be applied to the present case. On the aspect of eligibility to exemption under Notification 67/95-C.E., Shri Mondal submits that such benefit is not available for the reason that - (a) M/s. GVK site cannot be construed as a factory within the scope of Sec. 2(e) of the Central Excise Act since no Central Excise registration was obtained by M/s. GVK, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bolts; finally coupling was done leading to completion of activity. Looking to the above process, we find that it is identical to the facts of the Triveni Engg. Industries judgment cited (supra). The Supreme Court held that it is a common ground that a turbo alternator comes into existence only when a steam turbine and alternator with all their accessories are fixed at the site and only then it is known by a name different from the names of its components in the market. The Tribunal recorded the finding that fixing of steam turbine and the alternator is necessitated by the need to make them functionally effective to reduce vibration and to minimise disturbance to the coupling arrangements and other connections with the related equipme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land cannot be treated as a common base and, therefore, it follows that installation or erection of turbo alternator on the platform constructed on the land would be immovable property, as such it cannot be excisable goods falling within the meaning of Heading 85.02. 7. In the light of the above judgment, which is squarely on the main issue in dispute, we are not in a position to accept the contention of Shri Mondal that Sec. Note 4 to HSN Explanatory Notes covering functional units, wherein existence or otherwise of common base is not relevant, as the appropriate Section Note 2 has to be applied for holding that the items in question are marketable and hence excisable goods, as also the reliance placed by the Commissioner on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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