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TMI Blog2019 (4) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... taneously remain fastened to the racks embedded in the floor. Thus, it becomes clear that except assembling the modules required for the purpose along with other requisites as that of wires and switches and transporting them to the railways site and finally installing by interconnecting all the goods purchased on the payment of excise duty, there is no such process done by the appellant which may be called as manufacture - Definition of manufacture under Section 2(d) of CEA is sufficient to distinguish the activity/service of assembling from the activity of manufacture. Whether there is the emergence of new marketable commodity with a distinctive name? - Held that:- All the articles used while assembling the electronic signalling system were initially purchased from the various suppliers and were finally installed into the shape of EIS in the premises of railways. To our opinion nothing more than the service of installation and commissioning that has been rendered by the appellant as above. Above all, there has been a Board’s Circular No. 58/1/2002-CX dated 15.1.2002 regarding the excisability of plant and machinery assembled at the site after considering the several decisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the payment of service tax on the installation charges does not mean that no excise duty is payable on goods manufactured and that no evidence about payment of service tax has been produced on record. Being aggrieved of this order, the appellant is before this Tribunal. 2. We have heard Shri Amit Jain, ld. Advocate for the appellant and Shri H.C. Saini, ld. AR for the Department. 3. It is submitted on behalf of the appellant that the appellants participates in tender process of various railway project across the country and which for the impugned electronics interlocking railway signalling systems. The contract in question with Indian Railways was to include three separate activities i.e.: (i) Preparation, submission and approval of station specific interface; (ii) Supply of goods; (iii) Installation, testing and commissioning activity. It is submitted that the goods in question are not excisable being not movable nor marketable. Section 3 of Central Excise Act, 1944 is impressed upon along with Section 2(d) thereof. It is impressed upon that twin requirement according to both the sections need to be satisfied i.e. manufacture and the marketability for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evasion of duty appellant has considered the said activity as a service and has duly discharged liability, the extended period accordingly could not have been invoked by the department nor there arises any question of imposition of penalty or recovery of interest. With these submissions, the order under challenge is accordingly prayed to be set aside, and appeal is prayed to be allowed. 6. While rebutting these arguments, it is submitted on behalf of the department that the main activity is of designing and developing a software which is ultimately resulting into new commodity called as electronic interlocking signalling systems. These signalling systems are recognised as distinct items in the Tariff classifiable under different sub-headings. Above all, the contract for purchase of EIS itself clarifies that the equipment is marketable contract/order. As has clearly been observed by the adjudicating authority in para 10 in the impugned order. Impressing upon no infirmity in the order under challenge, appeal in hand is prayed to be dismissed. 7. After hearing both the parties and perusing the entire record of this appeal, we observe that original adjudicating authority has, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which actually crucial to transmit data of signal from the display in penal room to the processing unit, and if compatible with the data contained in the unit, for its ultimate transmission to the signals. Thus, it becomes clear that the several components which have respective marketability were purchased by the appellant against appropriate Sales Tax and then taken to the railway s site to be so assembled, installed or commissioned they remain interconnected and simultaneously remain fastened to the racks embedded in the floor. Thus, it becomes clear that except assembling the modules required for the purpose along with other requisites as that of wires and switches and transporting them to the railways site and finally installing by interconnecting all the goods purchased on the payment of excise duty, there is no such process done by the appellant which may be called as manufacture. The department has also not disputed that the components procured by the appellant are duty paid as is otherwise evident from the copies of invoice and other documents placed on record. Definition of manufacture under Section 2(d) of CEA is sufficient to distinguish the activity/service of assembli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been a Board s Circular No. 58/1/2002-CX dated 15.1.2002 regarding the excisability of plant and machinery assembled at the site after considering the several decisions of Hon ble Apex Court, as quoted in the said circular. It was clarified that where the change of identity takes place in the course of erection, of a structure which is an immovable property, then there would be no manufacture of goods involved and no levy of excise duty. It has also been clarified in the said circular that if any good installed at site are capable of being sold or shifted as such after removal from the base and without dismantling into its components, the goods would be considered to be moveable and thus excisable, else not. As already discussed above should EIS herein once dismantled will not have the character of EIS any more rather will be segregated into all the modules (as above) all were assembled while installing, erecting or commissioning the said EIS. Thus, from the department circular also, it stands clear that the EIS herein do not qualify any of the criteria i.e. either of manufacture or marketability to the leviable to excise. Above all, the department itself in appellant s own case h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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