9911796707
TMI Blog2008 (5) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... 93/02 and No. 4100/03. In the above judgment, the Apex Court disposed the appeals filed by the Commissioner of Central Excise, Indore, against our Final Orders No. 100-102/02 dated 28-1-02 [2002 (143) E.L.T. 336 (Tri.-Chennai)] and F.O. No. 1305/02 dated 3-12-02 and remanded them to the Tribunal. The civil appeals correspond to appeals No. E/469/01, E/470/01, E/1047/01 and E/444/02 respectively. The first three appeals arise out of a common order No. 57/C.Ex./Ind./2000 dated 22-12-2000, passed by the Commissioner of Central Excise, Indore. The last mentioned appeal impugned an order of the Commissioner of Central Excise, Hyderabad No. 30/2002 dated 21-6-02. Both the orders in original dealt with clearances of boiler components falling under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal had not considered the basic factual aspects. 2. In the orders in original impugned in the appeals decided by the Tribunal, it had been decided by the adjudicating authorities that what CVL had cleared from the factory were components of boiler and what was erected at the premises of BAIL/NGECL was a commodity different from the goods cleared from CVL and constituted a new item, namely boilers (in the OIO No. 57/00 of CCE Indore the Commissioner also had accepted at one place that CVL supplied boiler in SKD/CKD condition). Both the orders held that what emerged at the customer's site was goods exigible to duty. In OIO No. 39/02 of CCE, Hyderabad, it was held that the boiler could be dismantled, shifted and reassembled. 3. In Final o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rule 173B of CER declaring that they were clearing boiler for BAIL/NEGCL in CKD/SKD condition classifying them under CETH 8402.10 (1997-98 and 1998-99 CETA). Duty was paid classifying components cleared as boiler falling under CH 8402.10 in the invoices. The vendors from whom CVL sourced components also had cleared the components on payment of duty. They went by Circular No. 4/92 dated 19-5-92 of CBEC relating to assessment of boilers cleared by CVL. Letter dated 6-6-95 of Member, CBEC had endorsed the Circular. They also followed the judgment of the Apex Court in Thermax Ltd. case [1998 (99) E.L.T. 481 (S.C.)]. Circular No. 4/92 clarified that even if supplies were made in the manner referred in the Circular still what was supplied wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In case duty was to be collected on the impugned immovable goods as boilers, CVL was entitled to credit of the duty paid on components. The purchase order embraced the entire plant and not the boiler alone. Therefore, the purchase order value was not relevant for assessment of impugned goods. 5. The boiler was erected on a piece by piece basis. In TRF Ltd. v. CCE, Bhopal - 2002 (143) E.L.T. 161 (Tri.), it was held that systems erected bit by bit at customer's site were immovable property. In this case, boiler and associated system could not be dismantled without parts being damaged. In Blue Star Ltd. v. CCE, Jaipur - 2002 (143) E.L.T. 391 (Tri.), it was held that when air conditioning plant was installed, tested and commissioned at site a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence similarly after assembling of various equipments and parts at site. Therefore, this ratio applied. In ACC Ltd. v. Commissioner - 2004 (173) E.L.T. 335 (Tri-Mum.), it was held that electrostatic precipitators fabricated and erected at site were embedded in concrete and hence, the same were not goods and not excisable. 6. The Ld. SDR reiterates the findings in the impugned orders. 7. We have carefully considered the case records and the rival submissions. The Apex Court set aside and remanded the final orders of this Tribunal for adjudication afresh in the light of Circular No. 58/1/2002-CX., dated 15-1-02, issued by the Central Board of Excise and Customs and their judgment in the case of CCE v. Virdi Brothers (supra). Their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al finding is crucial to decide the dispute. All the binding case law and the Board's Circular issued considering several judicial authorities, mostly judgments of the Apex Court, are to the effect that duty cannot be demanded when components of any machinery cleared on payment of duty in CKD/SKD condition had become an immovable property on assembly and erection at the buyer's site. 8. F.O. No 1305/02 dated 3-12-2002, found that the facts were identical to that of the case disposed by F.O. No. 100-102/02 (supra) and therefore, following the ratio of the said judgment, allowed the appeal filed by CVL. In the circumstances, we allow the appeals filed by CVL, BAIL & Shri P.S. Sundararajan. (Operative part of the Order pronounced in Open Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
