1999 (11) TMI 459

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....n, Advocate, for the Respondents. [Order per : G.R. Sharma, Member (T)]. - This ROM application has filed by the applicants stating that a mistake has crept in the Final Order No. A/1116/97-NB, dated 28-11-1997 [1998 (99) E.L.T. 681 (Tribunal)] inasmuch as the Apex Court has later on held that erection at site from bought out items results in bringing into being a marketable commodity and em....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ses of sale. Moreover, by fabrication and erection, these goods were embedded to earth. There is a catena of judgment that marketability is one of the tests to which the goods should be subjected. Both from the marketability angle as also from the angle that the plant and machinery on erection got embedded to earth and, therefore, they are not goods. Since they are not goods, therefore, they will ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....etable but was embeded to earth. He submits that in the present case it is boiler house and not part of it. He, therefore submits that there is no mistake in the order of the Tribunal. In support of his contention, he cites and relies upon the decision of the Apex Court in the case of CCE v. Hyderabad Race Club - 1996 (88) E.L.T. 633 wherein the Apex Court held that "Having regard to the judgment ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the items listed by the department as liable to duty are nothing but parts fabricated at the site and since the parts are used for manufacture of boiler house, therefore, they were not dutiable and that boiler house is not dutiable as it was embbeded to earth. He submits that thus the cases cited and relied upon by the appellant are clearly distinguishable and do not apply to the facts of the pres....