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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 ..... hat the aforesaid interlocking systems got manufactured and comes into existence at the railway stations. As such, the appellants are liable to pay the excise duty who are otherwise not eligible for SSI exemption, there value of clearance of manufactured goods exceeding Rs. 4 crores in the preceding financial year. Resultantly, the Show Cause Notice dated 20th May 2013 was served upon the appellant proposing the demand of excise duty of Rs. 48,15,737/- along with interest and the appropriate rate and the proportionate penalties. The said Show Cause Notice, the proposal thereof was confirmed by the original adjudicating authority vide Order No. 55 dated 22nd May 2014, holding 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different modules as mentioned above. Resultantly, the transaction is treated as a service and the service tax has been discharged, no question of payment of excise duty on the same activity at all arises. Finally, it is impressed upon that the demand is barred by limitation. Also the penalty is not imposable nor the interest is recoverable. Ld. Counsel has submitted that the identical issue even in appellant's own case has been dealt with not only by the coordinate benches but by the department itself in the favour of the appellant but the adjudicating authority has totally ignored the same. As there is no act of the appellant which may amount to the 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equipment by the appellant at the Railway site which requires placing of the rack on the ground of the room floor given by the railway. Those racks have to be fastened with the said floor even wooden planks are being fastened between two separate racks and between the concrete bedding to prevent the electric shock. It is thereafter that wiring an interconnections are to be established between terminals and release in the rack which is a manual extensive exercise. The individual terminal requires not only the inter connections but also the connection to the house racking and to cable termination unit relying, to the railway signal/switches 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 become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andigarh Bench vide Final Order No. 62340-62345/2018 dated 23.3.2018, where the activity as that of quoting in that case which is not leading to the establishment of a new commodity, the same cannot be dealt as manufacture. 13. From the contract on record also, we observe 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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