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TMI Blog2001 (7) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to these duty demands, the impugned order has also imposed penalties on the appellant as well as demanded interest on the duty amounts. 3.It has been held in the order that the cement clinker plant was manufactured/installed by the assessee during the period 1993-95 and the cement plant is a dutiable product classifiable under chapter 8474.10 of the Central Excise Tariff. The order rejected the assessee's plea that the cement clinker plant is immovable property and that no duty of excise can be imposed on such immovable property as it could not be treated as goods. 4.The appellants have reiterated their submission that the clinker cement plant is not excisable goods in the present appeal. It has been explained that the duty has been imposed on the one million tonne clinker plant and this plant comprising a number of identifiable machines, equipment and structures which are sequentially erected cannot be called goods. Para 9 of their appeal states as under :- The complete project of Keymore Mehgaon One Million Tonne"9. Plant does not constitute one machine. It is a plant comprising a number of identifiable machines, equipments and structures sequentially erected to manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in the case of Sirpur Paper Mills Ltd. v. CCE, Hyderabad, 1998 (97) E.L.T. 3 (S.C.). The learned SDR has pointed out that the Apex Court has held in Sirpur Paper Mills case that the mere fastening of the machinery to concrete base did not make the machinery non-excisable. He, however, submitted that since the Commissioner has not discussed marketability of the clinker plant in his order, the case is required to be remanded to him for a fresh decision after considering marketability criterion. The learned SDR also drew our attention to recent decision of the Apex Court regarding dutiability of structurals in the case of CCE v. Man Structurals Ltd. [2001 (130) E.L.T. 401]. 7.It is well settled through several decisions of the Supreme Court that, in order to attract duty of excise, there should be manufacture of excisable goods and the goods manufactured should be marketable. In the case of Triveni Engineering and Industries Ltd. v. CCE - 2000 (120) E.L.T. 273 (S.C.) = 2000 (40) RLT 1 (S.C.) the Apex Court observed regarding the requirement of marketability of goods as under :- The marketability test requires that the goods as such"21. should be in a position to be taken t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In view of the above, we hold that the duty demand in respect of the cement clinker plant is not legally tenable. The same is set aside along with penalties imposed and demand for interest. 9.With regard to the duty demand made in respect of hoppers, ducts, chutes etc, the submission of the appellants is that the demand is time barred inasmuch as the assessee had intimated the Central Excise authorities about the fabrication of these items vide their letter dated 5-5-1994. The learned Counsel has submitted that the letter intimated the Assistant Collector that the goods mentioned under Sl. No. 3 of that letter were manufactured by them and that they were eligible for exemption under Notification No. 46/94 dated 1-3-1994. The learned Counsel has submitted that in view or the prompt intimation to the jurisdictional Assistant Commissioner about the manufacture of the goods, duty demand invoking the extended period for demand of duty could not be made in the present case. The learned Counsel has submitted that the matter being in the knowledge of the department, a charge of suppression of facts with intent to evade payment of duty could not be raised in the present case. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclare that question of law. Therefore, the finding in the impugned order that the demand on these items had been raised in time cannot be upheld. 11.With regard to the Electro Static Precipitator (ESP) the submission of the appellants is that this equipment was assembled at site from parts purchased from other manufacturers and other parts fabricated by the appellant. The appellants have claimed that ESP is fully exempt under Notification No. 67/95 dated 16-3-1995. As against this, the learned SDR has pointed out that the impugned order was correct in confirming the duty demand as the claim of exemption under Notification No. 67/95 had not been made before the adjudicating authority. Dutiability of goods is a question of law which can be raised at the appeal stage also. It goes to the root of the dispute. We, therefore, consider it appropriate to remand this issue for fresh consideration by the Commissioner. 12.With regard to the duty demand on scrap, the submission of the appellant is that duty demand has been made in respect of scrap arising in the dismantaling of condemned old machinery. It has been explained that the appellants had sold the condemned machinery on as is where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /99, dated 21-4-1999 of the Commissioner of Customs & Central Excise, Bhopal. Duty demand has been confirmed in this order in respect of waste and scrap cleared from the appellants cement manufacturing unit. The duty demand has been raised based on the receipts entered in the appellants annual books of account on account of the sale of waste and scrap. The submission of the appellant is that waste and scrap of various kinds and material arose in the factory during its operation. This is due to dismantling of condemned machines, repair and replacement of parts of machines and repair of building etc. The appellants contented that waste of various kind arise in the course of the running of the factory and that such waste and scrap are not manufactured goods which attracted Central Excise duty. The adjudicating authority has rejected this submission and confirmed the duty demand holding that the dismantling or old machinery into scrap and scrap arising during the installation of new machinery and maintenance of installed machinery amount to manufacture of scrap inasmuch as those processes result in the creation of waste and scrap and waste and scrap are quite different from the materia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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