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TMI Blog1988 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... y was to be erected in the respective premises of the two factories. The petitioner says, for the purpose of the said works, it purchased pumps, motors, instruments and valves. It also purchased, steel sheets, angles, rods and girders in the open market, which were brought to the petitioner's factory at Gondiparia, where they were bent, cut and joined in requisite shapes and then transported to the respective sites. There they were welded, fabricated and erected. The machinery was implanted into earth. According to the petitioner further, the Central Excise authorities advised it to prepare Gate-Passes (at its factory in Gondiparia) indicating therein the nature of the unfinished parts required for fabrication and erection of the machinery (turn-key projects), to meet the procedural formality of Central Excise Rules, and collected duty on such unfinished components by way of debit entries in the P.L. Account maintained as per the provisions the Central Excise Rules. Under their advice, the petitioner submitted monthly R.T. 12 Returns at the end of each month, showing the value of the unfinished parts and materials used in the turn-key projects, whereupon the Department collected du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods". They have no market, nor are they marketable as such; they are not available in the market for sale. They are merely so prepared for the purpose of transporting to the site of the customer where they are welded, fabricated, and joined together and the machinery/plant erected. Levy of excise duty on such unfinished components is not warranted by law and is, therefore, violative of Article 265 of the Constitution; (ii) that the turn-key projects undertaken and completed by the petitioner at the site of Bhadravati Steel Mills and A.P. Rayons are also not 'goods'. Since they are firmly implanted in the earth, they become immoveable property. No duty is leviable on the value of such turn-key projects/plant/machinery; and (iii) the petitioner came to know of the illegality of the levy only when the decision of the "CEGAT" was reported in J.K. Export Industries, Junagadh v. Collector of Central Excise, Ahmedabad - 1983 E.L.T. 2390 and soon thereafter approached this Court by way of these writ-petitions. The claim of the petitioner is, therefore, within limitation, and must be allowed. 5. On the other hand, Sri K. Nagaraja Rao, the learned Additional Standing Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plant in its factory premises. The authorities levied duty upon the value of the said Dal Plant, and also imposed personal penalty under Rule 73-Q(1). The appellant questioned the same by way of an appeal before the Tribunal, which considered the question whether the Dal Mill which is attached to the earth, is chargeable to duty under Item 68 of the Central Excise Tariff. The Tribunal upheld the contention of the appellant that the Dal Mill cannot be called "goods", inasmuch as the Dal Mill Plant was manufactured by assembling the duty-paid parts, and it is firmly attached to earth, not intended to move thereafter. It was held that on account of such firm implantation in the earth, the machinery becomes immovable property and, therefore, not 'goods' liable to excise duty. 7. Now coming to the facts of the case before us, duty in this case was not levied. upon the value of the machinery, fabricated and erected at the site of the customers, nor at that stage. Duty was levied on the value of the component parts when they were removed from the petitioner's factory premises at Gondiparia, in Kurnool District. In other words, duty was not levied on the value of the "turn-key project", ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticularly where tax/duty has been collected in violation of Article 265 of the Constitution, this Court should ignore the pleas of limitation and should grant relief. We are not impressed. That duty cannot be levied upon unfinished components or upon semi-finished goods was not laid down for the first time in Union Carbide India Ltd. v. Union of India and Others -1986 (24) E.L.T. 169 or in Aruna Industries, Visakhapatnam, v. Collector of Central Excise, Guntur -1986 (25) E.L.T. 580. It was so held as far back as in Union of India v. Delhi cloth and General Mills Co., Ltd. -1977 E.L.T. 199. Indeed, the very same principle was reiterated in S.B. Sugar Mills v Union of India - AIR 1968 S.C. 922 = 1978 E.L.T. (J 336), and Union of India v. Ramlal Mansukhrai - AIR 1971 S.C. 233 = 1978 E.L.T. (J 389). We are, therefore, unable to agree with Mr. Subrahmanya Reddy that the decisions reported in Union Carbide India Ltd. v. Union of India and Others -1986 (24) E.L.T. 169, or in Aruna Industries, Visakhapatnam v. Collector of Central Excise, Guntur -1986 (25) E.L.T. 680, rendered during the pendency of these writ petitions, can be treated as decisions putting the petitioner on notice about th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, and has preferred this claim more than four years after the payment of duty. Once we hold that the decision of the 'CEGAT in J.K. Export Industries, Junagadh v. Collector, Central Excise, Ahmedabad -1983 E.L.T. 2390 cannot be treated as a fact leading to the discovery of mistake on the part of the petitioner, it must be held that the petitioner practically abandoned its claim, and that its present claim is a stale one. 10. We also find that granting the relief to the petitioner would amount to unjustly enriching it. It is not stated by the petitioner that it has not passed on the burden of this duty to its customers, which means that it has already collected the said amount from its customers. It is not even stated that the said customers have called upon the petitioner to pay over the said sum on the ground that it was not payable in law. In such a case, granting the refund would amount to conferring an uncalled for benefit upon the petitioner. The law on this subject has been elaborately discussed by a Bench of this Court, of which one of us (Jeevan Reddy, J.) was a member, in N.V. Ramaiah v. State - AIR 1986 A.P. 361 = 1988 (35) E.L.T. 38 (A.P.). The Bench followed the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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