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TMI Blog2009 (4) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... wn under the Circular No. 58/1/2002-CX., dated 15-1-2002 - In the result, without expressing our views on any of the points sought to raised in the matter and all the issues being kept open, the appeals are allowed, the impugned order is set aside and the matter is remanded to the Commissioner to decide the same de novo bearing in mind Circular No. 58/1/2002, dated 16-1- X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 23,64,409/- in terms of Rule 9(2) of the Central Excise Rules, 1944 read with Section 11A(l) of Central Excise Act, 1944 and after granting credit to the tune of Rs. 40,639/- balance of Rs. 23,23,769/- to be recoverable from the appellant-assessee. It also confirmed the demand of Rs. 89,774/- being the duty payable on the Pallete Fryer with day tank. While dropping the claim of Rs. 92,573/-, some scrap which was valued at Rs. 67,500/- was ordered to be confiscated with option to redeem the same on payment of Rs. 13,000/- and penalty of Rs. 2 lacs was imposed in terms of Section 173Q of the said Rules while holding that assessee was also liable to pay interest in terms of Section 11AB of the Central Excise Act, 1944. 5. The main cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, not dutiable, cannot be accepted. On the contrary, all the equipments which are collected and connected to each other at the site can be dismantled and bought and sold in CKD condition. Referring to Rule 2(a) of Rules of interpretation of tariff laws, the Commissioner has held that the same provides that the goods in incomplete or unfinished condition can attain the essential character of the finished or complete goods even if removed in unassembled or disassembled condition. And, therefore, each site can be treated as a factory or manufacturing activity which is capable of being bought and sold in the CKD condition and therefore, duty is leviable on such goods. 6. Learned advocate appearing for the appellant drew our attention to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial damage to its components and thus cannot be reassembled, then the items would not be considered as moveable and will, therefore, not be excisable goods. (vi) If any goods installed at site (example paper making machine) are capable of being sold or shifted as such after removal from the base and without dismantling into its components/parts, the goods would be considered to be moveable and thus excisable. The mere fact that the goods, though being capable of being sold or shifted without dismantling, are actually dismantled into their components/parts for ease of transportation etc., they will not cease to be dutiable merely because they are transported in dismantled condition. Rule 2(a) of the Rules for the Interpretation of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes and the test to be applied to ascertain whether any product which is fixed at particular cite can be considered to be movable or not. It is to be seen whether the said test was applied by the Commissioner in the case in hand. 9. As already observed above, the Commissioner by merely referring to a description of the machinery has held that each individual machine was connected with pipes and power and the same has resulted in food processing line. The Commissioner has not considered the same in accordance with the guidelines laid down under the Circular. Of course, when the matter was decided by the Commissioner, the guidelines were not available before the Commissioner. The guidelines came into existence after the decision by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said guidelines. Once the said basic issue is decided, various other issues which are sought to be raised by the parties will have to be addressed to by the Commissioner. In our view, such issues would include the points as to whether the classification of product in question can correctly be done under Item 84.38 of the Central Excise Tariff Act, whether the extended period of limitation can be invoked under the provisions of Section 11A of the Central Excise Act and the penalty can be levied, whether the Modvat credit on the duty paid on inputs/components as claimed by the assessee can be allowed, whether the value adopted should be treated as cum-duty price, as well as whether the Modvat credit facility claimed by the appellant-assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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