2000 (8) TMI 390

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....uch as cone, shells, base plate and channel rings. The cone was the top most of the tank and it was first fabricated by placing it on cement platform meant for fixing the tank. The top cone was lifted using chain and pulleys from the platform and thereafter the shell, the cylindrical part of tank was welded to the lifted top cone. Further the other shells were welded to the lifted shell one after the other. The base plate was welded to the bottom most shell and the channel rings were also fixed and welded to give extra firmness. From the above, it is clear that the assessee had first manufactured the parts of the tank viz. Cone, shells, base plate and channel rings. All these were welded together and then fixed to the ground on the cemen....

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....and similar containers for any material of iron or steel. Since all these parts have the essential character of storage tanks and complete tanks have been removed in an unassembled condition, these are rightly classifiable and chargeable to duty under Heading 73.09. 2. Learned Advocate has relied upon the decision in the case of J.K. Synthetics Ltd. v. CCE as reported in 2000 (124) E.L.T. 643 (T) = 1999 (33) RLT 129, wherein the Tribunal had held as under : - "Chimney shell - made by cutting and bending MS Sheets, the shells are bolted with foundation and with each other to make chimney which comes into existence as immovable property - no evidence about marketability of shells adduced by the department - not marketable and not e....

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....The question of tank having come into existence and tested therefore, does not arise and in the facts of their case there can be no excisable stainless steel have come into existence. Therefore, he submits that their appeal should be allowed. 3. Learned DR reiterates the Commissioner's findings. 4. We have considered these submissions and find that - (a)      The Commissioner in the impugned order, as extracted above, has admitted that the immovable property has come into existence at the site. When the Commissioner has come to this conclusion, we fail to understand how thereafter he has applied the Rule 2(a) to hold all the parts taken together to be steel tanks classifiable under heading 73.09, ....