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TMI Blog2019 (8) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2011, 308 of 2011 - A/86337-86340/2019 - Dated:- 2-8-2019 - Dr. D.M. Misra, Member (Judicial) And Mr. P. Anjani Kumar, Member (Technical) Shri Prashant Paranjape, Advocate for the Appellant Shri Sanjay Hasija, Authorised Representative for the Respondent ORDER PER: DR. D.M. MISRA These four appeals are filed against order-in-original No. 266/11/V/2010/Commr/KS dated 15.11.2010 passed by the Commissioner of Central Excise, Mumbai. 2. Learned Advocate submitted that appeal No. E/308/2011 is filed by Shri Prashant Ramesh Kocha. He expired on 15.06.2014. In support, he has placed the death certificate of the said appellant. He has further submitted that in view of Rule 22 of the CESTAT (Procedure) Rules, the appeal abates. The Ld. A.R for the Revenue has no objection. Hence, the said Appeal is abated. The other Appeals are taken up for disposal 3. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of chlorination equipment, evaporators, chlorinator system and parts thereof. They avail the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for physical inspection also. The learned Advocate has submitted that even though in the order, the Tribunal directed the adjudicating authority for physical inspection of the chlorination plant installed at various sites, however, the de novo order was issued by the Commissioner without undertaking the exercise of physical inspection of the chlorination plant, hence, the order issued by the adjudicating authority is bad in law. Reiterating their submission before the authorities below, the appellant narrating the process undertaken by the appellant at site for erection and commissioning of chlorination plant, submitted as follows: i) Various items of equipment both manufactured and bought out from sub-vendors which have been taken to site are placed on their foundations and grouted with the help of special cement compounds. ii) After grouting, micro alignment of the goods is carried out particularly the rotating equipment s. iii) The equipment s are thereafter connected together with pipes of various sizes made out of various base material such as carbon steel, mild steel, mild steel/carbon steel that are rubber lined, fibergl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 800 milimeter x 1750 milimeter in size. The evaporators are also similar in size. xii) The manufacture of the chlorinator, evaporator and trunnion rollers takes approximately 3 to 4 months whereas the erection of a plant/system as a whole takes approximately 9 to 12 months. The Appellant during the course of hearing invited attention of the Hon ble Tribunal to the drawings of chlorination plant system, namely, P ID; Plan of Equipment and Piping Layout and Sectional Views of Equipment and Piping Layout. 5. Referring to the Board s circular dated 15.01.2002, the learned Advocate has submitted that in the aforesaid circular, it has been clarified that the turnkey projects are immovable in nature and hence not excisable. The appellant has undertaken various turnkey projects of installing entirely a chlorination plant and hence, the chlorination plant cannot be called as excisable goods. 6. Further, the learned Advocate has submitted that a chlorination plant is completely different from a hot mix plant. A chlorination plant is housed inside an earthquake proof building/specially constructed building and the plant is joined to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15.01.2002 issued by Board. Also, it was directed that if necessary, physical inspection could be undertaken by the adjudicating authority in deciding the issue. Pursuant to the said direction, the adjudicating authority considered the whole issue again, but without undertaking any physical inspection of various turnkey projects. The adj. authority has observed that the plant erected by the appellant at various sites are excisable goods, hence, leviable to duty. 10. We have carefully examined the contention of the appellant and find that the appellant is engaged in assembly of chlorination plant at various sites on turnkey basis. The following photographs produced during the course of hearing reveal that the plant has come into existence only after assembly of various individual components which were grouted to the earth and civil foundations on permanent basis and not for the purpose of making it wobble or vibration free. Thus the purpose was to permanently attach the individual components for smooth function of the plant as a whole. Needless to emphasize, each of the items has been connected through pipelines and dismantling the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is completed. In our view, therefore, no commercial movable property came into existence until the assembling was completed by embedding different parts in the civil works. 11. Similarly, in Ion Exchange Ltd. s case (supra), by a majority, it has been held that manufacture of water treatment plant at the site by assembly and installation of various individual components would result into emergence of an immovable property, hence, not leviable to duty. The said judgment was later followed for the subsequent period. In Chemtec Water Conditioners case (supra) also, the question was whether water treatment plant, which is firmly and permanently attached by way of civil construction to earth, is liable to excise duty or otherwise. Following the judgment of the Hon ble Supreme Court, this Tribunal observed that after being permanently grouted/embedded to earth, it loses the character of movability and thus becomes immovable, accordingly, non-excisable. 12. In the present case also, no evidence has been placed by the Revenue that the chlorination plant erected and commissioned at site could easily be unassembled and shifted to other place withou ..... 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