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TMI Blog2013 (12) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... est and equivalent amount of penalty and confiscation of the plant manufactured and cleared by the appellants 2. Shri Nitin Sanghi Director of M/s Dalal Mckenna Private Ltd. and M/s. Sanghi Oxygen (Bombay) Pvt. Ltd. have also filed appeals for imposition of penalty under Rule 26 of the Central Excise Rules 2002. 3. The brief facts of the case are that the applicants are engaged in the manufacture of excisable goods classifiable under Chapter 84 of the Central Excise Tariff Act, 1985. The applicants are manufacturing following items: (i) Air separation column/unit; (ii) Expansion engine: (iii) Liquid oxygen pump; (iv) Liquid nitrogen pump. 4. The above goods are manufactured and clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items manufactured by the appellant for the remaining 2, it is the contention of the Ld. Counsel that the appellant supplied only the items manufactured by them and remaining items were supplied by third party directly to the customer at the customer's site. The plant were erected by some other agency. The said plant came into existence a customer's site, s it is permanently attach to earth and it cannot be removed at such. Therefore, it has become immovable property and same is not excisable goods. The Ltd. Counsel relied on the decision of the Hon'ble Supreme Court in the case of Triveni Engineering & Industries Ltd. Vs. Commissioner of Central Excise reported in 2000 (120) ELT 273 (S.C.). 6. Alternate, the Ld. Counsel submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit that the assembly of manufactured duty paid parts and bought out parts at site amounts to manufacture and the person carrying on such activity is manufacture and liable to duty. He also relied on the decision of Hon'ble Supreme Court in the case of Hon'ble Supreme Court in the case of Commissioner of Central Excise, Ahmedabad Vs. Solid & Correct Engineering Works reported in 2010 (252) ELT 481. He also submitted that the benefit of Notification No.67/95-C.E. ibid is not applicable to the appellants as same is applicable only for the intermediate product manufactured within the factory and is not applicable in respect of bought out items. 8. Heard both sides. 9. Considered their submission in detail. We find that it is not in dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal held that fabrication of steel structures like roof frame and sheds amounts to manufacture whether the same are fabricated at customers place. In the present case Nitrogen/Oxygen Plants were assembled at the customers place i.e. factory of the manufacturer not by the appellants. Therefore, the appellants have not supplied the plants to their customers. 10. In view of this observations, we hold that appellants have not supplied the plants but supplied only 4 items manufactured by them and they have discharged proper excise duty on the same, therefore, impugned order is not sustainable in the eyes of law, the appellant is not liable to pay any duty, accordingly confiscation of plant and imposition of duty is not sustainable. In these te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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