Immovable paint shop structure defeats Cenvat credit relief where installation cannot be removed or marketed as goods.

Credit on goods and materials used to erect a paint shop was denied where the installed structure was treated as an immovable installation rather than movable goods. The applied test was whether the structure could be marketed or removed as such; on the facts, the paint shop was assembled, welded and embedded in the earth, could not be removed without dismantling, and could not be reassembled in the same form. On that basis, no prima facie case was shown for waiver of pre-deposit or stay, and the interim relief was refused.

---

---

Issues: Whether the appellant made out a prima facie case for waiver of pre-deposit and stay in respect of Cenvat credit availed on materials and capital goods used for erection and commissioning of the paint shop, the department having treated the paint shop as an immovable asset.

Analysis: The impugned demand arose from disallowance of credit on goods and materials used in erecting the paint shop. The settled test applied was whether the installed structure was movable and capable of being marketed as goods; plant and machinery embedded to earth and forming part of an immovable installation do not satisfy that test. Relying on the statements of the Paint Shop Manager and the surrounding facts, the installed paint shop was found to have been assembled, welded and embedded in the earth, could not be removed without dismantling, and could not be re-assembled in the same form. The contrary reliance on decisions dealing with different factual settings and Rule 57Q was held to be of no assistance.

Conclusion: No prima facie case for stay or waiver of pre-deposit was made out, and the stay application was rejected.

Final Conclusion: The installed paint shop was treated as an immovable structure for the purpose of interim relief, so the appellant was required to comply with the pre-deposit direction, with the penalty kept in abeyance pending the appeal.

Ratio Decidendi: Plant and machinery embedded to the earth and incapable of being marketed as movable goods do not qualify for excise-based credit relief as goods.

---