TaxTMI 
TaxTMI 
2001 (9) TMI 605
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....ed into an agreement for carrying out design, supply, fabrication and erection of storage tanks and other connected works at the premises of M/s. Hindustan Petroleum Corporation Ltd. (HPCL). 2.  They have undertaken the following work activities at M/s. HPCL, while executing the said work of fabrication, erecting of storage tanks out of the steel plates supplied by M/s. HPCL at free of cost : - 1. Procurement of material from M/s. HPCL 2. Marking & cuttings as per drawings 3. Bending after cutting 4. Lifting as per markings - welding as per drawings and as per marking 5. ....
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....asphalt carpet (5) PCC (6) RCC (7) Reinforcement (8) Brick masonery (9) plastering. Section II deals with plate fabrication like (1) Bottom plate (2) Shell plate (3) Roof plates and the details are given in work order. 3. Their storage tanks are attached to the earth and are not intended to be removed thereafter and do not bring into existence any goods as defined in the sale of Goods Act 1930 and therefore the charges made by the Revenue department are not sustainable. 4. The marketability is an essential ingredient for dutiability, even if the goods are specified in a tariff schedule or are captively consumed and the burden to prove the marketability is on the d....
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....vable depending upon the level of liquid in the tank. The civil construction work undertaken intended to secure of safety and for operational efficiency. It is not attached to the earth like a tree or a building. There are instances where the tanks are shifted from the place of erection to the other place of required use by dismantling it as per the convenience and re-erection at the later place thus it does not answer to the test of permanency laid down by the Supreme Court in the case of Municipal Corporation of Greater Bombay and others v. Indian Oil Corporation Ltd. [1991 Suppl. (2) Sec. 18] and thus withstand the test of movability." 6.  Ld. Consultant Shri Gurusharan Singh submits that the Tribunal in the latest judgement in t....
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.... deals on the definition "goods ordinarily bought and sold in the market". He further submits that the case is a covered one and the matter can be taken up for final hearing by granting waiver of pre-deposit and stay of the recovery of the amounts. 8.  Ld. DR points out from the extracted portion of the ld. Commissioner's order that the ld. Commissioner has given the finding that these particular storage tanks are capable of being dismantled and can be carried and erected at other places. Therefore, these tanks have assumed characteristics of "goods" which specifies the test laid down by the Apex Court in the case of Triveni Engineering. 9.  Ld. DR submits that the submissions made by the appellants that fabrication of the w....
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.... in the case of CC v. Man Structurals and the ratio in the case of Triveni Engineering, we are of the considered opinion that appellants have made out a strong prima facie case for grant of waiver of pre-deposit and stay of its recovery. Hence their application is allowed. 11.  At this stage ld. Consultant submits that the appeal can be taken up on the basis of the ratio of JST Engineering & Services and the matter can be decided in their favour. 12.  This is contested by the ld. DR on the ground that the fact are required to be verified in the light of JST Engineering & Services and therefore in absence of all the material facts, the appeal cannot be allowed. 13.  On a careful consideration, we agree with ld. DR tha....