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TMI Blog2001 (5) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. A like amount has been levied by way of penalty on it invoking the provisions contained in Section 11AC of the Central Excise Act, 1944 (hereinafter referred to as the Act). First noticee was also imposed a penalty of Rs. 10 lakhs under Rule 173Q of the Central Excise Rules, 1944 (hereinafter referred to as the Rules). Further, it was also directed to pay interest on the amounts directed to be paid by it invoking the provisions contained in Section 11AB of the Act. Order of adjudication further confiscated the refrigeration plants belonging to noticee Nos. 2 to 12 with option to redeem the same on payment of different amounts mentioned in the order. Penalties have also been imposed on those noticees invoking the provisions contained in R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration plant for cold storage is not goods excisable to duty under the Act. 4.Contention raised by M/s. Virdi Brothers against the show cause notice was dealt with by the Commissioner in paragraphs 44 and 45 of the impugned order. For a proper understanding of the grounds adopted by the Commissioner, we read the same : As far as cold storage is concerned the insulation of wall"44. and doors are not the components or parts of the refrigeration system. The application of insulation on wall and roof and creation of false ceiling is to achieve better performance cooling effect in the cold storage, in as much it prevents heat exchange and thereby air inside area is kept cool for longer period. For this reason it cannot be called as essential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nging to noticee Nos. 2 to 12. This fact has been admitted by the Department in paragraph 7 of the show cause notice. The relevant portion of paragraph 7 reads : "From the facts mentioned above it appears that noticee No. 1 had purchased various machineries/equipments viz. electric motors, compressors, starters, pipes and other items from various sources and manufactured (fabricated, assembled and erected) refrigeration plants at the sites of its customers viz. noticees 2 to 12." The various items mentioned as bought out items were manufactured by other manufacturers. They have paid duty on these goods as well. Those parts, which were already subjected to payment of duty, cannot be burdened with further duty liability. 5.Utilising the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nery which are attached to concrete base are immovable property, relying on the decision of the Supreme Court in Duncan Industries Ltd. v. State of U.P. - 2000 (88) ECR 19. This position has been reiterated by their Lordships again in Triveni Engineering and Industries Ltd. v. Commissioner of Central Excise, 2000 (120) E.L.T. 273. 7.Bombay Municipal Corporation imposed Municipal tax on petroleum storage tanks as if they were buildings coming within the purview of Bombay Municipal Corporation Act, 1888. Indian Oil Corporation Ltd., which owned the petroleum storage tanks, took up the contention that they are not buildings but are movable items. Question as to whether petroleum tank is a movable item or immovable property came up before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be separately taken as refrigeration plant. This aspect is to be appreciated in view of the fact that those machinery and parts have already suffered duty under the Central Excise Act. So, the approach made by the Commissioner cannot be taken as one appealing to common sense. The refrigeration plant is not movable goods. 9.Various bought out items which went into the construction of the refrigeration plant had already suffered excise duty when they were cleared from the factory where they were manufactured. Construction of refrigeration plant utilising those bought out items is not a manufacturing process wherein any marketable commodity as contemplated by the Act comes into existence. 10.In view of what has been stated above, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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