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TMI Blog2008 (5) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... ared to the customer’s site, at the rates applicable to boilers. At the customer’s site the components were assembled into boilers and erected piece by piece, on a concrete foundation. Such boilers could be removed only by dismantling them into parts. It had been found that on assembly and erection, the new item that had emerged in each case was immovable property not exigible to excise duty. - E/469, 470, 1047/2001 & E/444/2002 - 821-824/2008 - Dated:- 13-5-2008 - S/Shri P.G. Chacko, Member (J) and P. Karthikeyan, Member (T) REPRESENTED BY : S/Shri R. Raghavan and M. Kannan, Advocates, for the Appellant. Shri M.K.A.K. Mohiddin, JDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. - Four of these appeals arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... differential value of the boilers compared to the respective aggregate value of boiler parts cleared by CVL at the rate applicable to boilers. Penalties were imposed on CVL as well as its customers. The appeal No. E/1047/01 is filed by BAIL. The Tribunal had decided the appeals filed by CVL, BAIL Shri P.S. Sundararajan and NGBCL in favour of the parties vide Final Order No. 100-102/2002 dated 28-1-02 and No. 1305/02 dated 3-12-2002 respectively. Revenue challenged the above final orders before the Supreme Court. In its judgment in the case of CCE, Indore v. Cethar Vessels Ltd. reported in 2007 (212) E.L.T. 454 (S.C.), the Apex Court remanded the cases to the Tribunal with the direction that the appeals may be adjudicated in the light of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the supply of structurals and the details of its weight, value and % of duty have also been shown. From the above, the duty paid nature of the boilers sent in SKD/CKD condition therefore, is not disputed. (b) The fact that BAIL had placed orders on CVL for erection of boilers at the site is an admitted position and based on these facts, the proceedings have been initiated. (c) It is also not disputed that Board has issued a Circular under Section 37B, particularly for CVL only. (d) The question, therefore, is, as to whether the erection of boilers at site has brought into existence an immovable property or not? The Tribunal decided appeal No. E/444/02, against OIO No. 39/02 following its own decision discussed above in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 35E of the Act. So the proceedings lacked merit. Central Excise officers at Trichy had classified the goods cleared by CVL as boiler of CH 8402.10; it was not possible for officers at Hyderabad/Indore to treat the same as components of CH 8402.90. The Tribunal had taken cognizance of its decision in Virdi Brothers v. CCE - 2001 (132) E.L.T. 86, which was confirmed by the Apex Court in CCE Indore v. Virdi Brothers - 2007 (207) E.L.T. 321 (S.C.). Therefore, the Tribunal had already considered the judgment of the Apex Court directed it to follow in the remand proceedings. So was the case with the Circular of CBEC No. 58/1/02-CX., dated 15-1-02. The Tribunal had followed also a Circular issued specifically clarifying the issue of cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that boiler and its associated system had become immovable after erection as the assessment of the impugned goods as boilers was not challenged. In Otto India Pvt. Ltd. v. CCE, Raipur - 2002 (145) E.L.T. 367 (Tri.-Del.), it was held that Revenue had not rebutted the submission that all the machines, equipment and appliances brought to the site, assembled and erected on civil foundation had resulted in immovable property. If the plant was dismantled, it would result only in recovery of parts hence the same was not goods. This ratio applied to the subject case. Same was the ratio in Indica Chemical Industries Pvt. Ltd. v. CCE, Meerut - 2005 (185) E.L.T. 67 (Tri.-Del.). In Arvind Singh v. CCE - 2002 (145) E.L.T. 696 (Tri.-Del.), it was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing the ratio and the instructions contained in the Board's Circular, the Apex Court had directed us to follow. In both the final orders, the Tribunal had found that CVL had cleared boilers in CKD/SKD condition which were assembled at the customer's site along with duty paid components procured from other vendors. CVL had classified the impugned goods removed from its factory as boilers in CKD/SKD condition falling under CH 8448.10 after filing the classification declaration under Rule 173B of CER. They had discharged duty on the goods manufactured and cleared to the customer's site, at the rates applicable to boilers. At the customer's site the components were assembled into boilers and erected piece by piece, on a concrete foundation. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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