9911796707
TMI Blog1986 (10) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... premises of the Indian Coffee House at Calicut in 1976, according to the requirements and specifications of the coffee house. The component parts of the unit, including the condenser, thermostat valve, electric motor, stainless steel churner, cooling cans, etc. assessed to Excise duty and sales tax separately, were purchased from outside. They were transported to the coffee house, built with masonry and fixed, after putting up iron tanks, in two separate but adjacent rooms and connected together by copper tubings. It was thus a composite unit requiring both skill and labour, originality and imagination. This will be evident and obvious from the quotation and the invoice (Exts. R-1 and R-3) produced by the Department in this Court. The writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the 'Combination Cooler' is a refrigerating appliance after considering the evidence on record and also the utility and purpose of the unit and holding it as correctly classifiable under Tariff Item 29A(1). Government is in full agreement with his finding of the Board." 5. These orders were challenged in a writ petition before a learned Single Judge of this Court. In the counter affidavit filed by the Department, it was stated thus :- "It cannot conceivably be disputed that the Ice Cream Combination Cooler when assembled is a refrigerating appliance. The fact that portions of the composite unit are for convenience assembled in one room and the other portions are assembled in a different room does not affect the question. The unit is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence to the contrary and in the light of the facts not controverted by the Department, I must accept the contention of the petitioner that the articles in question does not come within the scope of Entry 29A." 7. Aggrieved, the Department has filed this appeal. 8. Tariff Item 29A of the Central Excises and Salt Act, 1944, reads thus :- Item No. Description of goods Rate of duty (1) (2) (3) 29A Refrigerating and air-conditioning appliances and machinery, all sorts and parts thereof - Seventy-five per cent. ad valorem. (1) Refrigerators and other refrigerating appliances which are ordinarily sold or offered- for sale as ready assembled units, such as ic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the appellant. I am sure, no consumer will be able to purchase from the market the Ice Cream Combination Cooler of the design and type in question. Consequently no duty is chargeable under Item 29(A)(1) of the Central Excise Tariff as Refrigerator in respect of the Ice Cream Combination Cooler assembled at the premises of the appellant." 10. There are two decisions of Bombay and Allahabad High Courts favourable to the assessee. In Blue Star Ltd. v. Union of India and another -1980 E.L.T. 280 (Bom.), the Bombay High Court was considering whether a Walk-in-Cooler manufactured and erected and installed at the site of the customers were not ordinarily sole or offered for sale attracting Entry 29A of the Central Act. It was held thus :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nits and are sold and offered for sale as such." ******** "Air-conditioning plants, Cold storage plants and ice-making plants, etc. consist of series of machines and other equipment which are situated at different places and connected with each other to form the complete equipment. Such plant may be sold completely but are not ordinarily sold or offered for sale as ready assembled units. These are erected at site and many of the equipments would have to be tailored to individual requirements. Such plants would not, therefore be classified under sub-items (1) and (2) of Item 29A of the Central Excise Tariff. Further the aforesaid interpretation of the tariff items was not considered and if refrigerating and air-conditioning plants are al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 14. We are of the view that Tariff Entry 29A of the Central Excises and Salt Act, 1944 is attracted only when refrigerators and other refrigerating appliances are ordinarily sold or offered for sale as ready assembled units. A refrigerating appliance is not ordinarily sold or offered for sale when it is made, moulded, erected and installed according to specifications and requirements of any particular customer. When a refrigerating appliance is a complete self contained unit only after all the component parts are assembled, located, fitted and fixed according to the customer's plan and purpose, it cannot be said that this unit is ordinarily sold or offered for sale, for then, it is sold for a particular purpose in special circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X
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