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TMI Blog2005 (6) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... deciding the merits of the issue involved, as it is wrong collection of duty and penalty without the authority of law. This is so settled by our Regional Bench of Hon ble Tribunal in Besterna Chemicals - 2004 (166) E.L.T. 351 (Tri.-Mumbai). 1.2 The issue herein is whether charges for observing and overseeing the work of installation at customers site, merits inclusion in the assessable value under Central Excise Act, 1944 for _______ of levy of duty on excisable goods. The law so settled is - (i) Erections and installations of a plant cannot be held to be excisable goods. If such wide meaning is assigned it would result in bringing in its ambit structures, erections and installations. That surely would not be in consonance with accepted meaning of excisable goods and its exigibility to duty - Quality Steel Tubes (P) Ltd v. Collector of Central Excise - 1995 (75) E.L.T. 17 (S.C.) - Para 6 relied upon) (ii) In the case of Thermex Limited [1998 (99) E.L.T. 481 (S.C.)] the dispute what arose about the inclusion of erection and commissioning charges in the assessable value of the Boiler installed by Thermex at the customer s site; the present Appellants are placed on a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods, on which duty is paid, the Tribunal ruled that cost of installation of machines at buyers premises cannot be made part of assessable value of the machines. (d) The latest in the line, the decision being as recent as of 29-10-2004, of Regional Bench of the Tribunal in the case of Gordhandas Desai Ltd., 2005 (179) E.L.T. 557 (Tri. - Mumbai) is - (i) Rule 2(a) of the Rules of Interpretation of the Schedule to the Tariff when applied to the clearances affected, will not permit addition of any value other than the values of the un-erected components of the furniture which were cleared at the assessee s factory gate . (ii) Erection Commissioning of the Fume Hood at the site of the buyer does not bring into existence again a new product at the said site. Fume Hood in completely erected position consists of Fume Hood, Fan, Blower, Ductings, Remote Control Valves, Air Flow Meters. Electrical Switches, Starters, Position Monitors, etc. as a huge structure of abnormal height or length and in that form it cannot be transported and even in completely erected position, the Fume Hood remains Fume Hood and accordingly, no new goods have come into existence at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000. Correctly it is 4(3)(d) . These ratios would apply to the Appellant, on all fours and the issue is no longer res integra. So, the full demand of duty and penalty, equal to this amount of duty confirmed is not sustainable and the same is to be set aside. 1.3 Now coming to the removals and assessments from 1-7-2000 onwards to 31-3-2002 when the concept of Transaction Value has to be adopted, for assessment of duty it was pleaded that the two phrases i.e. by reason of sale or in connection with the sale , the interpretations of these two phrases are no longer res integra. In Commissioner of Central Excise v. Acer India - 2004 (172) E.L.T. 289 (S.C.), the Apex Court, Constitutional Bench had ruled that - Central Excise Duty is chargeable on excisable goods and not on the goods which are not excisable. Thus, a goods which is not excisable if transplanted into a goods which is excisable would not together make the same excisable goods so as to make the assessee liable to pay excise duty on the combined value of both. Excise Duty, in other words, would be leviable only on the goods which answer the definition of excisable goods and satisfy the requirement of Section 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value . The Appellant has force in the plea on this that Commissioner has grievously erred in arriving at the above finding/issue and in his conclusion on the grounds - (i) Classification i.e. determining the Heading/Sub-Heading of CETA, 1985 in which the manufactured product falls is the base for collection of excise duty. The Heading/Sub-Heading determined, decides the rate of duty, to collect the duty, where the product is subject to ad volorem levy. Here at, the Respondent s own finding is that VFBD tea dryers are liable to duty under 84.19 of the Tariff. The enclosed purchase orders and invoices at pages 32 to 46 of the Misc. Appeal filed on 14-2-2005 also testify that duty already stands collected under Heading 84.19 at the Appellant s factory at Vadodara in respect of each and every VFBD tea dryers involved in the present proceedings. Being so, it is pertinent to note that - (a) Part V of Section XVI, covering Chapter 84, of HSN Explanatory Notes at page 1226 of 1996 Edition, itself lays down that - For convenience of transport many machines and apparatus are transported in an unassembled state. Although in effect the goods are then a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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