TaxTMI 
TaxTMI 
2017 (5) TMI 1339
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....epartment took the view that the said plant was embedded to the earth and hence immovable property. It appeared that the machinery was erected under the material development plant were not eligible capital goods for availment of CENVAT credit and that the component parts which constitute the said plant were not eligible for CENVAT credit. In adjudication, Commissioner vide impugned order dated 25.11.2008, upheld the stand of the department and confirmed the demand of differential duty of Rs. 31,72,44,540/ along with interest and imposed equal penalty under section 11AC of the Central Excise Act, 1944. Aggrieved, appellants are before this forum. 2. When the matter came up for hearing, learned Senior Advocate Shri N. Venkataraman, drew ou....
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.... period, vide Order-in-Appeal No. 190 to 192/2014 dated 14.10.2014. He points out that the learned Commissioner (Appeals) has subjected the issue through the tests laid down under the section 37B order issued by the Board and has allowed the appeal in their favour with consequential benefit, if any, except, for disallowing credit on iron and steel items like beams, angles, channels etc. For this reason, he submitted that the present dispute may also be remanded for denovo consideration in view of section 37B order of the Board. 3. On the other hand, Shri A. Cletus, learned AR submitted that he has no information concerning whether the impugned order of the Commissioner (Appeals) dated 14.10.2014 has been appealed against by the departmen....
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....or context 'immovable property' under the Transfer of Property Act, 1882 does not include standing timber, growing crops or grass. Section 3(26) of the General Clauses Act, 1897, similarly does not provide an exhaustive definition of the said expression. It reads : "Section 3(26) : "immovable property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth." 18. It is not the case of the respondents that plants in question are per se immoveable property. What is argued is that they become immovable as they are permanently imbedded in earth in as much as they are fixed to a foundation imbedded in earth no matter only 1= feet deep....
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.... comparable or synonymous to trees and shrubs rooted in earth. It is also not synonymous to imbedding in earth of the plant as in the case of walls and buildings, for the obvious reason that a building imbedded in the earth is permanent and cannot be detached without demolition. Imbedding of a wall in the earth is also in no way comparable to attachment of a plant to a foundation meant only to provide stability to the plant especially because the attachment is not permanent and what is attached can be easily detached from the foundation. So also the attachment of the plant to the foundation at which it rests does not fall in the third category, for an attachment to fall in that category it must be for permanent beneficial enjoyment of that ....
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....ly resting on their own weight are fixtures only if they are attached with the intention of permanently improving the premises. The Indian law has developed on similar lines and the mode of annexation and object of annexation have been applied as relevant test in this country also. There are cases where machinery installed by monthly tenant was held to be moveable property as in cases where the lease itself contemplated the removal of the machinery by the tenant at the end of the tenancy. The mode of annexation has been similarly given considerable significance by the courts in this country in order to be treated as fixture. Attachment to the earth must be as defined in Section 3 of the Transfer of Property Act. For instance a hut is an imm....
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....le property for the following reasons : (i) The plants in question are not per se immovable property. (ii) Such plants cannot be said to be "attached to the earth" within the meaning of that expression as defined in Section 3 of the Transfer of Property Act. (iii) The fixing of the plants to a foundation is meant only to give stability to the plant and keep its operation vibration free. (iv) The setting up of the plant itself is not intended to be permanent at a given place. The plant can be moved and is indeed moved after the road construction or repair project for which it is set up is completed." 6. In view of the above, we are of the considered opinion that the present dispute will requires to be r....