2009 (8) TMI 108 - HC - Central Excise

Court rules plant embedded in civil work exempt from excise duty

The Court ruled in favor of the petitioner in a challenge against a notice for non-payment of excise duty related to the fabrication of a waste water ... Non-payment of excise duty for fabrication/manufacture of waste water treatment plant - Held that:- In view of the fact that waste water treatment plant is not a separate movable marketable goods and comes into existence only on assembly of parts in the civil work, there is no question of levying excise duty on it. The very show cause notice also says that plant in an unassembled form was installed and affixed to the civil works. This shows that the plant on erection and installation becomes an immovable property which is not excisable to tax. Show cause notice quashed. Appeal allowed. Issues involved:Challenge to excise duty notice for fabrication of waste water treatment plant without payment of duty.Analysis:1. The petitioner challenged a notice issued by the Superintendent of Central Excise for non-payment of excise duty related to the fabrication of a waste water treatment plant. The notice alleged contravention of various Central Excise Rules and claimed excise duty on the plant valued at Rs. 5,32,37,123.2. The petitioner, engaged in fabrication and erection of structures, explained the detailed procedure for erecting the waste water treatment plant, involving fabrication of various components at the site, civil work, and commissioning. The plant required assembly, embedding in civil work, and pressure testing before becoming functional.3. The respondent contended that the plant came into existence in an unassembled form as per approved designs before installation and embedding in civil work, thus attracting excise duty. However, excise duty is not payable on immovable property, and the plant, when embedded in civil work, becomes immovable, exempt from excise duty.4. The Court interpreted the definition of 'manufacture' under the Central Excises and Salt Act, stating that merely collecting parts at the site does not constitute manufacture unless a new commercial product emerges. In this case, the waste water treatment plant only becomes a commercial movable property upon completion of assembly in civil works.5. The Court distinguished a Supreme Court decision involving assembly of duty-paid components, emphasizing that the waste water treatment plant, being immovable upon assembly in civil works, does not attract excise duty. Despite reluctance to interfere based on a show cause notice in writ jurisdiction, the Court granted relief to the petitioner due to the plant's immovable nature upon assembly.6. Consequently, the Court quashed the show cause notice dated 26th June, 1990, ruling in favor of the petitioner and absolving them from the excise duty claim. The judgment was made absolute with no costs awarded to either party.