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TMI Blog2015 (4) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to immovable final products. In the present case, both the Authorities have come to the conclusion that the final product is not immovable. Therefore the circular is of no avail to the appellant. - Decided against assessee. - C.M.A. No.1303 of 2009 & M.P.No.1 of 2009 - - - Dated:- 19-3-2015 - R. Sudhakar And R. Karuppiah,JJ. For the Appellant : Mrs. Pushya Sitaraman For the Respondent : Mr. K. Mohanamurali Standing Counsel JUDGMENT (Delivered By R. Sudhakar, J.) This Civil Miscellaneous Appeal filed by the assessee as against the final order passed by the Tribunal was admitted by this Court on the following substantial questions of law: 1. Whether on the facts and circumstances of the case, the Tribunal was right in holding that signages which came into being on erection at the petrol stations are movable goods liable to excise, merely because some samples were fully manufactured in the premises of the appellant? 2. Whether on the facts and circumstances of the case, the Tribunal was right in upholding the order of the Commissioner treating the signages as movable property contrary to the clarification issued by the Board? 2. The brief fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 058, is required to show cause to the Commissioner of central Excise, Chennai II Commissionerate, Chennai -35, as to why a penalty should not be imposed on him under Rule 209A of Central Excise Rules, 1944/Rule 26 of Central Excise Rules, 2002. 3. The case was adjudicated and the plea of the appellant was rejected. On adjudication, the Adjudicating Authority has passed the following order: 1. I hold that Signages manufactured/assembled by M/s.Virgo Industries (Engineers ) Pvt. Ltd., No.43 Second Main Road, Ambattur Industrial Estate, Ambattur, Chennai - 58 are excisable and chargeable to duty. The Signages are classifiable under C S H 9405.90 and chargeable to appropriate duty of excise 2. I confirm and demand Central Excise duty of ₹ 98,20,679/- (Rs.Ninty eight lakhs twenty thousand six hundred and seventy nine only) and ₹ 84374/- (Eighty four thousand three hundred and seventy four only) from M/s.Virgo Industries (Engineers) Pvt. Ltd., Ambattur, Chennai - 58 being the duty leviable on Signages manufactured and cleared as detailed in the Annexure to this Order in respect of Show Cause Notices No.30/03 dated 10.3.03. and 6/04 dated 11.2.04 under Section 11A( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had been erected at the various IOC bunks. It is the specific case of the appellant that at the premises of the appellant only sign poles were fabricated and the signages were erected using the components received at the various sites from their manufacturers. It is also the specific case of the appellant that signages came into existence only at the site and the same was immovable on erection as it was fixed to earth on concrete foundation and hence no excise duty was payable by the appellant on the activity of fabrication and erection of signages at the IOC premises. Relying on the Board's Circular No.58/1/02-CX dated 15.1.2002, the appellant submitted that no duty was payable on signages even if the same were cleared from the factory in CKD or unassembled form as the final product was immovable and not goods. In support of their contention, the assessee relied on the following decisions: 1. Gold stone Engineering Ltd. Vs.Union of India 2005 (181) ELT 11 (AP) 2. Commissioner of Central Excise, Chennai Vs. India Pistons Ltd. - 1998 (104) ELT 494 (Tribunal) 3. Collector of Central Excise, Bhubaneswar Vs. Radiant Electronics Ltd. - 1996 (85) ELT 102 (Tribunal) 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structure. The Senior Engineering Manager of IOC had stated that all the signages supplied by Virgo were actually manufactured and assembled at Virgo factory only. The emphatic statement as recorded by the Tribunal is that there was 'no chance of saying' that only parts of signages were taken to IOC outlets and assembled at site. He also states that assembled signages were dismantled for convenience of transportation to the respective sites where they were reassembled. It is also on record that as per mahazar dated 23.8.2000 drawn at the premises of Virgo, 10 numbers of main signages and 13 numbers of facility signages in fully assembled condition along with lighting poles, FRP components and poly carbonate boards were seized. This showed that the signages were assembled at Virgo's premises before dismantling and clearing them to the respective sites. The Tribunal also recorded the memo of delivery to show that complete signages were assembled. One other document relied on by the Commissioner and approved by the Tribunal is erection report dated 13.7.2000, which shows that what was unloaded was the full set of signage. Yet another document relied on is Form XX Sl.No.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IOC clearly justified the stand of the Department that they had manufactured the goods at the factory. By distinguishing the decisions in the case of Hyderabad Race Club, Malakpet, Hyderabad Vs. Collector of Central Excise - 1986 (23) ELT 274 (Tribunal), Triveni Engineering Indus. Ltd. Vs. Commissioner of Central Excise - 2000 (120) ELT 273 (SC) and Commissioner of Central Excise, Chennai Vs. India Pistons Ltd. - 1998 (104) ELT 494 (Tribunal) relied on by the appellant, the plea of the appellant that signages came into existence only after erection and they were immovable and not exigible was repelled by the Tribunal holding as follows: We find that in the instant case the complete signage is movable and is installed by fixing it on a concrete foundation. These can be detached and shifted to another location without damaging them. The signage is fixed to earth like the paper machines considered in Sirpur Paper Mills Ltd. case. Signage is complete before fixing on the concrete platform. The facts of the judicial authorities relied on by the appellants are therefore different and their ratio inapplicable to the facts of the instant case. 16. In fine, after analysing the vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt dealt with what would constitute furniture and held as follows: 15. Thus, a perusal of the definitions given in various dictionaries shows that ordinarily 'furniture' refers to movable items such as desks, tables, chairs, required for use or ornamentation in a house or office. Thus, ordinarily furniture is not something immovable or something which is fixed in a position which can be removed only by cannibalizing. We agree with learned Counsel for the appellants that the latter are fixtures and not furniture. 16. Several of the items in question in the present case e.g. kitchen overhead and below counters, storage units are, in our opinion, clearly not 'furniture' and hence not excisable under Sub-heading 9403 as furniture. 17. In view of the above discussion, we are of the opinion that these appeals have to be allowed. We hold that items which are ordinarily immovable or which ordinarily cannot be removed without cannibalizing e.g. storage units, running counters, overhead unit, rear and side unit, wall unit, pantry unit, kitchen unit and other items which are ordinarily immovable or cannot be removed without cannibalizing are not furniture. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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