2003 (12) TMI 468

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..... lants, M/s. ABB Ltd. and equivalent penalty under Section 11AC of the Central Excise Act, 1944. Further a penalty of Rs. 2 lakhs has been imposed on the appellants, M/s. GVK Industries under Rule 209A. Through these stay applications, they are seeking waiver of pre-deposit and stay of the recovery proceedings. 3. Shri G. Shivadass, learned Advocate appearing for the appellants, M/s. ABB Ltd. submitted that the appellants entered into a contract with M/s. GVK Industries Ltd. for erection and commissioning of power plant at Jegurupadu. One of the components of the power project is Heat Recovery Steam Generator (HRSG) which is a boiler that uses the waste gas of gas turbine, M/s. GVK Industries imported HRSG for erection at its site by class .....

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..... xistence as a result of erection and commissioning work at the site and which cannot be taken to market as such, are to be regarded as immovable property not liable to Central Excise duty. He also said that the HRSG is permanently embedded to the earth and cannot be easily dismantled. Such embedding is not just to ensure wobble-free operation but because that is the method of erecting such machinery step by step so as to make it workable. Thus it is an immovable property and therefore, the test of marketability is not satisfied in this case. He also referred to the Circular dated 15-1-2002 issued by the Central Board of Excise and Customs wherein it is clearly states that the goods assembled or erected at site and attached to the foundation .....

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..... view, when the individual components are assembled at site, they are presented in the form of boiler which is a distinct new commodity with a distinct use and is distinct from the individual components form which HRSG is assembled. It is classified under Heading 8402 of Central Excise Schedule and as per the facts given by the assessee, it is known to the market as a distinct commodity. Even though connected to the earth and interconnected through ducts or pipelines, the boiler parts can be dismantled without much damage to its components and brought back in the original form when they can again be assembled as required. There is a distinct product which arises as a result of the erection of the individual parts like modules, side sections .....

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