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TMI Blog2006 (8) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... s chargeable with reference to Transaction Value, with effect from 1-7-2000, and in terms, as defined u/s. 4(3)(d) of the Act, it appears, that the term Transaction Value would include any amount i.e. recovered from the customers by reason of sale, or whether at the time of sale or any other time. Therefore, it appears, to the Department, that since the assessee had recovered/charged/billed the amount towards erection and installation in respect of the said goods Curtain Walls at site, as per contract to various customers through commercial invoices raised during the period 1-1-2002 to 30-9-2002 and such amounts would represent the Transaction Value of the goods i.e. fabricated components/parts of a Curtain Wall removed from the factory on which Central Excise Duty was paid. Since the duty was not paid on such amounts, therefore, they were required, that on the amount of Rs. 5,46,39,911/- recovered in addition to the value of which they have paid duty through the invoices, to pay Central Excise duty amounting to Rs. 87,42,386/- as detailed against recovery of the said erection and installation charges, since thereby they had contravened the provisions of Section 4 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Glazing) as part of immovable property and hence it is not covered by the term goods as they are immovable and that the goods as an article must be something which can ordinarily come to the market to be brought and sold. Further, as claimed, the Curtain Wall could not be removed without substantial damage to the building structure and hence they could not be treated as goods as they are permanently fixed to the building structure. While it is admitted position that the erection/installation charges are collected in respect of Curtain Wall since the same is attached to earth, the wall is an immovable property and hence cannot be treated as excisable. 1.6 The Commissioner has held; (a) it is necessary to analyse the correctness and the veracity of these claims forwarded by the noticee. The issue to be decided , is the valuation of the goods manufactured and removed by the assessee and not its classification. Classification of the products was not subjected to dispute in the notice. In view of this any argument put forth by the noticee regarding the claim that their product Curtain Wall or any other is not goods because they are immovable is not attracting the attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y manufactured excisable goods to the customer and installation/erection is done by the customer by some one else. Similarly in some cases they undertake the job only where the manufactured goods were supplied by some other party. In a large number of cases, job of erection and installation is also given to them by the customers on works contract composite basis, because they have the necessary expertise in installation and fixation work. They have a separate division having office at Perel, which handles the job of erection/installation independently. They submitted that in all cases, at the time of offering quotations they quote the sale price of their products separately for manufactured goods and installation and erection charges separately as an option. It is the option of the customer as to whether he wants only the manufactured products from them or even wants the installation and erection done by them at site. The value of the manufactured goods and erection/fixation charges are separately determined at the time of finalisation of agreement. (e) Basically the contract is made for the sale of the goods. In a large number of cases, job of erection and installation is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board clarified that if parts/components of a generator are brought to a site and generator erected/installed and commissioned at the site then, the generator being an excisable commodity, the cost of erection, installation and commissioning charges would be included in its assessable value. This clarification has not been attracting the attention of the notice - very conveniently enough. (g) They also claimed that they received clarification from the Department itself under F. No. V.Gen(3) 46/99/M-VI/10345 dated 7-10-1999 that the installation and erection charges are not includible in the assessable value of their products being cleared from their factory i.e. aluminum doors, windows, curtain walls etc. The insertion of concept of the transaction value in Section 4 has not made any difference to the legal position discussed herein above. For the obvious reasons this argument cannot be acceptable at all. Any clarification issued prior to the amendment made to Section 4 cannot be considered for the activity took place in the posterior period. If the noticee believes that the insertion of concept of the transaction value in Section 4 has not made any difference it must because t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der informed by the Additional Commissioner that as per the existing Central Excise Law, a procedure will be followed by them to determine the duty and their product was in order and it was clarified to them with their work would be no objection in the company in maintaining a separate division for erection and commissioning and it again clarified vide Letter dated 7-10-99 and installation and erection charges are not included in the assessable value being cleared from their factory. (c) the question of process of installation and erection of Curtain Walls , as explained by the assessee, to the Dy. Commissioner in charge of the Division and verified by him is as under :- (i) Brackets are fixed to the building wall-structure at pre-determined locations using foundation bolts/fasterners. (ii) Aluminium section are erected/installed one over the other at the site supported by mild steel angles and brackets fixed on the building wall structure. The aluminium sections when installed one over the other give support to each other, and the said assembly/erection of the aluminium sections thereby changes identity in the course of this erection/installation/construction process. Gla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as a product does not appear in Central Excise Tariff) is a wall of glass embedded in aluminium sections/panels fixed to a building. It will not be inappropriate to say that the Curtain Wall is a substitute for the brick and concrete wall to decorate the outer contours of a building. It is the external facade of a building and is also known as Structural Glazing. Like a brick wall, it comes into existence step-by-step and piece-by-piece as a part of the immovable property. Depending upon the dimensions and configurations of the building, the designing and fabrication of the Curtain Wall has to be site-specific. Due to its tailor-made nature, it is incapable of being sold in the market as such. The Curtain Wall as such cannot be erected at one place and fitted into another place. Similarly, it is incapable of being removed once erected without causing substantial and irreparable damage to the building wall and the components of the Curtain Wall. Therefore, there is no doubt what-so-ever that the Curtain Wall as a product is not excisable (as it comes in to existence piece-by-piece as a part of the immovable property), in view of the Order No. 58/1/2002-CX dtd. 15-01-2002 issued un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in this case. No proposed classification under CETA 1985 for Curtain Walls as structure was placed before us or the Commissioner. The learned DR fairly agrees that it could not be 73.08 of CETA 1985, the Wall being fabrication result of Aluminium Sections Glass Sheets etc. We, therefore cannot apply the Larger Bench decision to the facts herein. (ii) The other cases, relied upon the Ld. Representative, are concerned with the assembly of diesel generator set and weigh bridge , they cannot come into assist the Classification exisibility of Aluminium Glass Curtain Wall fabricated at fixed on to a Building. We, therefore, find no reason to differ with the findings of Curtain Wall to be not excisable or that on the Curtain Wall no duty can be leviable under Central Excise Act, 1944 when it is erected on the premises at site. (f) Prima facie, we find that the costs of erection and installation of the Curtain walls at sites as recovered, by the appellants for performing the contract of installation of Curtain Walls at building site when such fabrications are not found to be excisable goods cannot be added, to determine value of components cleared from a factory, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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