TaxTMI 
TaxTMI 
2005 (6) TMI 467
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....ing the merits of the issue involved, as it is wrong collection of duty and penalty without the authority of law. This is so settled by our Regional Bench of Hon'ble Tribunal in Besterna Chemicals - 2004 (166) E.L.T. 351 (Tri.-Mumbai). 1.2 The issue herein is whether charges for observing and overseeing the work of installation at customers site, merits inclusion in the assessable value under Central Excise Act, 1944 for _______ of levy of duty on excisable goods. The law so settled is - (i) "Erections and installations of a plant cannot be held to be excisable goods. If such wide meaning is assigned it would result in bringing in its ambit structures, erections and installations. That surely would not be in consonance with accepted meaning of excisable goods and its exigibility to duty"- Quality Steel Tubes (P) Ltd v. Collector of Central Excise - 1995 (75) E.L.T. 17 (S.C.) - Para 6 relied upon) (ii) In the case of Thermex Limited [1998 (99) E.L.T. 481 (S.C.)] the dispute what arose about the inclusion of erection and commissioning charges in the assessable value of the Boiler installed by Thermex at the customer's site....
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....te of the customer; observing that it is not disputed by the Revenue that Appellants were paying duty on complete Diesel Engine Alternate Set, the cost of installations of machines subsequent to the clearance of goods, on which duty is paid, the Tribunal ruled that cost of installation of machines at buyers premises cannot be made part of assessable value of the machines. (d) The latest in the line, the decision being as recent as of 29-10-2004, of Regional Bench of the Tribunal in the case of Gordhandas Desai Ltd., 2005 (179) E.L.T. 557 (Tri. - Mumbai) is - (i) "Rule 2(a) of the Rules of Interpretation of the Schedule to the Tariff when applied to the clearances affected, will not permit addition of any value other than the values of the un-erected components of the furniture which were cleared at the assessee's factory gate". (ii) "Erection & Commissioning of the Fume Hood at the site of the buyer does not bring into existence again a new product at the said site. Fume Hood in completely erected position consists of Fume Hood, Fan, Blower, Ductings, Remote Co....
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....i.-Chennai)]. Following the same, the duty demand as made in this case on merits, therefore, cannot be assessed." [Para 7(c)(d)] it is to be noted that para 7(e) of this decision indicates that the Hon'ble Tribunal had decided this case in terms of the substituted Section 4 of CEA, 1944, as effected on 1-7-2000. The quoted Section '4(2)(d)' apparently is a typographical/printing error, as there is no such sub-section in Section 4 from 1-7-2000. Correctly it is '4(3)(d)'. These ratios would apply to the Appellant, on all fours and the issue is no longer res integra. So, the full demand of duty and penalty, equal to this amount of duty confirmed is not sustainable and the same is to be set aside. 1.3 Now coming to the removals and assessments from 1-7-2000 onwards to 31-3-2002 when the concept of Transaction Value has to be adopted, for assessment of duty it was pleaded that the two phrases i.e. "by reason of sale" or "in connection with the sale", the interpretations of these two phrases are no longer res integra. In Commissioner of Central Excise v. Acer India - 2004 (172) E.L.T. 289 (S.C.), the Apex Co....
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.... "In this case there is no dispute about the fact that the VFBD tea dryer machinery being manufactured by the assessee company is liable for duty under Heading 84.19 of the Tariff. However, the various components of the machinery manufactured by the assessee are cleared and assembled into a tea dryer machinery at the customer's premises. Thus, VFBD, the tea dryer machinery comes into existence at the customer's premises and therefore the installation, erection, and commissioning charges would be includible in the assessable value". The Appellant has force in the plea on this that Commissioner has grievously erred in arriving at the above finding/issue and in his conclusion on the grounds - (i) Classification i.e. determining the Heading/Sub-Heading of CETA, 1985 in which the manufactured product falls is the base for collection of excise duty. The Heading/Sub-Heading determined, decides the rate of duty, to collect the duty, where the product is subject to ad volorem levy. Here at, the Respondent's own finding is that VFBD tea dryers are liable to duty under 84.19 of the Tariff. The enclosed purchase orders and invoices at pages 32 to 46 of the Misc....