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TMI Blog2010 (9) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... C.E., Mumbai-I reported in 1999 (113) E.L.T. 558 (Tri.-Mum.), United Phosphorous Ltd. v. C.C. of Ex. and Cus. reported in 2002 (150) E.L.T. 650 (Tri.-Mum.), Premier Synthetics Ltd. v. C.C.E., Daman reported in 2009 (237) E.L.T. 416 (Tri.-Ahmd.), Photo Kina Chemicals Pvt. Ltd. v. C.C.E., Vapi reported in 2009 (235) E.L.T. 83 (Tri.-Ahmd.), Sunita Minechem Industries v. C.C.E., Jaipur-II reported in 2009 (233) E.L.T. 129 (Tri.-Del.) and of the Hon ble Supreme Court in the matter of Jaiprakash Industries Ltd. v. C.C.E., Chandigarh reported in 2002 (146) E.L.T. 481 as well as in the case of C.C.E., Jaipur v. Rajasthan Spinning Weaving Mills Ltd. reported in 2010 (255) E.L.T. 481 (S.C.), the learned Advocate for the appellants submitted that the authorities below erred in ignoring the fact that the equipment and machinery was fixed to the ground for sole purpose to prevent vibration and for better operation of such fixation was with the help of nuts and bolt and therefore they could not have been categorized as forming part of the immovable assets and hence the credit could not have been disallowed. He further submitted that in view of divergent views expressed by different Benches of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chedule. The steel tubes and pipes produced by the appellant were exempt from duty as they were produced out of duty paid raw material. For the manufacture of these items the appellant had set up plant and machinery at its factory site. The first phase of installation was completed in the year 1974 by putting up all processes of tube making such as slitting line, tube rolling plant, welding plant, testing equipment and galvanizing etc. The tubes which could be rolled were in the size range of 15 mm to 50 mm. The second phase of expansion was taken up by adding balancing facility for the manufacture of steel tubes of higher diameters ranging upto 150 mm. For the expansion of the project the appellant acquired various plant and machinery, for instance, uncoiler, looper, leveler, stamping and stock guide, forming mill, welding head, cooling zone etc. The project consisted of acquiring various items and components and installing them for making a complete unit for production of steel tubes. Certain items of the plant and machinery such as uncoiler, looper, etc. were purchased from the market and embedded to earth and installed to form a part of the tube mill. Components purchased from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f being brought to market. Goods which are attached to the earth and thus become immovable do not satisfy the test of being goods within the meaning of the Act nor it can be said to be capable of being brought to the market for being bought and sold. Therefore, both the tests as explained by this Court, were not satisfied in the case of appellant as the tube mill or welding head having been erected and installed in the premises and embedded to earth they ceased to be goods within meaning of Section 3 of the Act . 5. In Mittal Engineering Works case while dealing with the issue as to whether Mono Vertical Crystallisers, upon which excise duty under the provision of the said Act can be levied or not, after taking note of earlier decisions including that of Quality Steel Tubes held thus :- 10. It was the case of the appellants, not disputed by the Revenue, that mono vertical crystallisers were delivered to the customers in a knocked down condition and had to be assembled and erected at the customers factory. Such assembly and erection was done either by the appellants or by the customer. Where it was done by the appellants, fabrication materials of the customer were used and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries or installations. These tanks, though not embedded in the earth, are erected at site, stage by stage, and other completion they cannot be physically moved. On sale/disposal they have necessarily to be dismantled and sold as metal sheets/scrap. It is not possible to assemble the tank all over again. Such tanks are, therefore, not movable and cannot be considered as excisable goods (Reference para 15 of Triveni judgment supra) and the case of C.C.E., Chandigarh v. Bhagwanpura Sugar Mills reported in 2001 (134) E.L.T. 673 (Tri.-Del.) = 2001 (47) RLT 409 (CEGAT-Del.)]. (iii) Refrigeration/air-conditioning plants. These are basically systems comprising of compressors, ducting, pipings, insulators and sometimes cooling towers etc. They are in the nature of systems and are not machines as a whole. They come into existence only by assembly and connection of various components and parts. Though each component is dutiable, the refrigeration/air-conditioning system as a whole cannot be considered to be excisable goods. Air-conditioning units, however, would continue to remain dutiable as per the Central Excise Tariff. (iv) Lift and escalators, (a) Though lifts and escalators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile erecting and installing them some of the equipments and machinery have been fixed to the ground for the sole purpose to prevent vibration and better operation. Similarly, the steel structures housing those equipments and machinery which too were fabricated in the supplier s factory have simply attached to earth by way of fixing bolts at certain points . Though, it was sought to be claimed in the reply that affixation to the earth by way of nuts and bolts was to prevent vibration and better operation, neither the reply nor any other evidence was placed on record which could reveal anything contrary to the facts disclosed by Sh. Kuldeep Kumar Kaul, Manager of the Paint Shop, as noted above. Prima facie, therefore, we find it difficult to accept the contention sought to be canvassed on behalf of the appellants regarding the fact that the capital goods in question do not form part of immovable assets. The reliance in this regard in the decision of the Apex Court in the matter of C.C.E., Jaipur v. Rajasthan Spinning Weaving Mills Ltd. reported in 2010 (255) E.L.T. 481 (S.C.) is concerned is of no help. In the said case the Apex Court was dealing with the point as to whether the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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