TaxTMI 
TaxTMI 
2018 (7) TMI 1712
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....se of the department is that the nuts and bolts are parts of transmission tower. Therefore, the value thereof should be included in the value of transmission towers supplied to the customers. 2. Shri. Prakash Shah, Ld. Counsel appearing on behalf of the appellant submits that the nuts and bolts are not used in the manufacture of their final product i.e. transmission towers. Nuts and bolts are bought out items and the same is traded by supplying the same directly from the supplier's to the site of the buyer of transmission towers. Therefore, nuts and bolts are not taking part in the manufacture of transmission towers. He further submits that the nuts and bolts are required for erection and commissioning of transmission towers. The said activity is taking place only at the site and after erection and commissioning, the transmission towers become immovable goods and hence the same is not excisable goods, and since no duty is required to be paid on nuts and bolts and for the same reason value of nuts and bolts cannot be included in the assessable value of transmission towers. He further submits that the demand related to Show Cause Notice dated 12.03.2014 related to appeal no. E/109....
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....3 (65) ELT 447 (Trinunal) 26.Brew Force Machines Pvt Ltd Vs cce Delhi-II reported in 2016 (333) ELT 468 (Tri. Del) 27.Cimmco Birla Ltd Vs CCE Jaipur reported in 2003 (156) ELT 1019 (Tri.Del) 28.Bharat Heavy Electricals Ltd Vs. CCE Meerut reported in 2001 (133) ELT 584 (Tri. Del) 29.Relevant Extracts from the First schedule of C.E Tariff Act. 30.Collector of CE Bombay -II Vs Refair Industries Reported 1998 (103) ELT 331 (Tri.Mum) 31.CCE Bombay-I Vs. Automatice Engineering Works reported in 2001 (130) ELT 331 (Tri.Mum) 32.Collector of C.E Calcutta Vs. Alnoori Tobacco Products reported in 2004 (170) ELT 135 (S.C) 33.Calama Inds Pvt Ltd Vs. CCE, MUM [2016 (9) TMI 82-CESTAT Mumai) 34.Honeywell Automation India Vs. CCE Mum-III [2016 (9) TMI 90-CESTAT Mumbai] 35.Jayshree Electrodevices Pvt Ltd. Vs CCE, Pune-I Order dated 30.05.2016 passed in Appeal No. E/824/07] 36.M/s Cheema Boilers Limited Vs. CCE & ST Chandigarh reported in 2018-VIL-235-CESTAT-CHD-CE 37.Copy of Order No. A/86040/2018 dated 17/04/2018 in the matter of SS Engineers Vs. CCE Pune-II 38.KEC international Ltd Vs. CCE, Jaipur-I reported in 2017 (358) E.L.T 752 (Tri. Del) 39.Andhra Pra....
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....either can be included in the value of such machine or even leviable to duty independently. Though the Ld. Counsel relied upon catena of case laws. However, we reproduce the following judgments which are identical to the present case. 4.1 In the case of Dodsal Pvt. Ltd. (supra) this tribunal held as under : "We are, therefore, unable to accept the contentions of the Revenue that there has been a manufacture of excisable goods, the several members continued to be within Item 26AA and if there is no transformation into a different commodity, the recourse to Item 68 would not be justified. The Appellate Collector has rightly observed that the activity would not come under the purview of a- manufacture and „the transmission towers which were erected at the site from the structural material would be permanent structures and would not admit of the definition or description of the goods. The decisions under the Sales Tax Act cited by the SDR have been given with reference to particular provisions and do not have material bearing to determine the excitability of the products in this proceeding. The other decisions cited by the SDR are with reference to the facts and circumstanc....
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....he assessable value, duty cannot be demanded. Even though the show cause notice mainly alleged that the bought out items are liable for duty but in the impugned order the demand has been made on whole contract price which shows that the demand has no basis. Nevertheless we find that the 80 TPH Boiler on the basis of which demand has been confirmed against the Appellant is a huge structure which was erected at site and is permanently attached to earth. It was erected piece by piece and not by merely putting some goods together viz. the Appellant 's own manufactured goods alongwith bought out components. We have gone through all the contracts/ agreements entered into by the Appellant during the impugned years as well as photographs of some of the contracts placed in the appeal. We find that all the contract were for either erection and set up of sections of the Sugar factory or the Sugar factory itself. All these Section are part of Power plant system of Sugar factory i.e Boiler or turbine system or the factory itself which are in huge set up of machinery and equipment embeded permanently to earth. None of these sections can be removed as such or in Knocked down condition or semi kno....
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....ems has been done by the appellant. The liability to Central Excise duty arises only when there is a manufacturing activity undertaken and in the absence of manufacturing activity the liability of Central Excise does not arise. On a similar issue in the case of Acer India Ltd. (supra) observed as follows: 55. It must be borne in mind that central excise duty cannot be equated with sales tax. They have different connotations and apply in different situations. Central excise duty is chargeable on the excisable goods and not on the goods which are not excisable. Thus, a goods which is not excisable if transplanted into a goods which is excisable would not together make the same excisable goods so as to make the assessee liable to pay excise duty on the combined value of both. Excise duty, in other words, would be leviable only on the goods which answer the definition of excisable goods and satisfy the requirement of Section 3. A machinery provision contained in Section 4 and that too the explanation contained therein by way of definition of transaction value can neither override the charging provision nor by reason thereof a goods which is not excisable would become an excisable on....
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.... for Cane Carrier Drive. Trough s Rakes, Chain, Runners, Service Gangway, Tensioning Devices, Set of Bagacillo Collecting Hopper with Bagacillo Screens and Sliding Door for feeding bagasse to boilers. 3 Cane Kicker Central Shaft, Knives, Plummer Blocks & Bearings, Drive Base Frame, Moto r with Starter Reduction Gear Box, Coupling etc. 4 Cane Leveller Shafts & Hubs, Flywheels, Bearing & Plummer Blocks. Couplings, Set of nuts & bolts for knives, knives. Motor with starter, Rails, Rotor Assembly complete with hubs, Flywheels, Bearing Plummer Blocks, Nuts & Bolts for Hammer, Hammers, Deflector & Anvil Plate, Anvil Suspension Gear Hood Rear Chutes, 750 HP SPDP Slipring Motors. 5 Cane Feeding Device Assembly of Automatic Cane Feeding Devices complete in all respects. 6 Mill House Head Stock with Wear Plate, Side Cap with pins Top Cap with pins, Side Bearing, Top Half of Top Bearing, Bottom Half of Top Bearing. Mill Roller with crown pinion, Trash Beam with bolts, Trash Plates, Scrapper Plate Holder, Scrapper Plate Massecheart Knife Holder with knives, Tail Bar. Service Gangway with staircase and railing. Hydro-pneumatic System Control Panel. Tank with ....
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....ting coils, syrup/juice samples etc. 12 Vacuum Pans Calandria for 60 T. vacuum pan with bottom saucer. Body for 60 T vacuum pan, Catchall for vacuum pan. Pan Discharge Valve complete with operation mechanism, Set of pan washing coils, feeding headers and all other pan accessories. 13 Grass Hopper Plain Tray-Grass Hopper, Multi Tray Grass Hopper, Drive Motor for Grass Hopper with pulley starter, V Belt etc., Hot Air Blower with air heater, Cold Air Blower. 14 Sugar Elevators Casing, chain, buckets, drive etc. 15 Feeder Table Shafts, Sprockets, Plummer Blocks with bearing drive motor complete with variable speed drive, reduction gear box, starter etc. 16 Juice Sulphiter Juice Sulphiter (with stirrer, drive etc.), S02 recovery tower with chimney. Lime proportionating device, syrup sulphitatio n unit, S02 recovery tower. 17 Condensors Multi-jet condensor for 750 MM diameter (vapour) pipe including tail pipe, Multi-jet condensor for 1100 MM diameter vapour pipe including tail pipe. It is also the case of the department, as seen from the show cause notices and the impugned orders, that the items are huge items encompassing wide are....
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....ested by the assessees. 5. In the light of the above discussion, following the ratio of the apex j court's decision in Triveni Engg. & Inds. Ltd. supra, on the basis of which CBEC Circular No. 58/1/2002-CX., dated 15-1-2002, which is binding on the Revenue authorities, was issued, we set aside the demands and penalties and allow both the appeals. The above order of the Tribunal has been upheld by the Hon'ble High Court as reported in Commissioner v. S.S. Engineers-2008 (232) E.L.T. A200 (Bom.)]. We find that in the present case also the show cause notices alleged that the Appellant manufactured the same goods as above and duty demand has been made. Applying the above ratio of the Tribunal we are of the view that the demand of duty made against the Appellant on good s erected, installed at site are absolutely not sustainable. We also find from the Miscellaneous application filed by the Appellant that the jurisdictional Commissioner vide noting dt. 11.11.2008 viewed that the value of the bought out items cannot be included in the assessable value of the manufactured goods in view of the fact that the bought put items did not enter into the factory of the Applicant and no credit....
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....om the Appellant, it would not be liable to be paid as the alleged activity of installation of goods took place at the factory of customer and hence they are eligible for exemption in terms of Notification No. 67/95 - CE. 9. The adjudicating authority has confirmed duty demand on the contract price. However since we have held that the goods which came into existence after using the bought out goods and the Appellant's own manufactured goods has resulted into immovable property i.e whole sugar plant or its part in the form of Power section or other sections, we do not find any reason to demand duty on the same. In case of Ker a la State Electronics & Controls Power Systems P. LTD. 2004 (171) ELT 281, the Tribunal held as under: 5. On a careful consideration and perusal of the impugned orders, we notice that the bought out items were independently supplied to the site and they are in the form of junction boxes, signal heads and cables. They are not part of the traffic controller. All these items go to form traffic signal system, which according to the appellant is an immovable property. The authorities below have held that the value of the bought out items is to be added to the....
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.... d) Emerson Network Power India Pvt. Ltd. - 2004 (176) ELT 168 (T) e) Fuse Base Eltoro Ltd. - 2000 &116) ELT 179 (T) f) Goetze (India) Ltd. - 2004 (169) ELT 274 (T) = 2004-TIOL-366-CESTAT-DEL g) Kerala State E lectronic Dev. Corpn. - 2008 (224) ELT 88 (T) = 2007-TIOL-1558-CESTAT-BANG h) BHEL Vs. CCE - 2001 (138) ELT 1223 (T) i) Neycer India Ltd. - 2005 (192) ELT 620 (T) j) Mahindra & Mahindra Ltd. - 2015 (321) ELT 513 (T) k) Pace Marketing Specialities Ltd. - 2000 (119) ELT 77 (T) I) Jai Hind Oil Mills & Co. - 1994 (71) ELT 902 (Bom). 3. On the other hand, Shri V. K. Shastri, learned Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both sides. We find that the Revenue has not disputed the value of Rs. 42 lakhs for each LPG bullets. However, the demand was raised only on inclusion of the value in respect of bought out items and certain activities taken place at the site for erection and installation of the said LPG bullets. We find that all these elements such as bought out items are undisputed....
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....ival contentions. We find that it is an admitted case of Revenue that the appellant have not brought the bought out items in their factory of manufacture and it is further admitted fact that the control panels are not cleared along with bought out items from the factory of manufacture. Under such circumstances, we hold that there is no application of Rule 6 of the Valuation Rules, 2000. We further hold that there is no misdeclaration of the transaction value by the appellant. Under the fact s and circumstances that the appellant have placed the orders on third-party vendors for supply of the bought out items directed to their customers and have paid the applicable sales tax/VAT, the same does not attract levy of excise duty. We also take notice of the fact that in para No. 27.14 of the impugned order the Adjudicating Authority observed as follows: - "I find that the bought out items have not been brought to the factory premises and have not been used in the manufacturing of the goods-control panels. The bought out items were directly sent to their customers and being essential and inseparable part of the control panel, they were installed at the site by them." 7. ....
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....than those cleared either to a unit in a Free Trade Zone or to a 100% Export Oriented Undertaking or to a unit in an Electronic Hardware Technology Park or to a unit in a Software Technology Parks), which are exempt from the whole of duty of excise leviable thereon or are chargeable to 'Nil' rate of duty. Explanation. - For the purposes of this notification 'inputs' does not include - (i) packaging materials in respect of which any exemption to the extent of the duty of excise payable on the value of the packaging materials is being availed of for packaging any final products; (ii) packaging materials or containers, the cost of which is not included in the assessable value of the final products under section 4 of the Central Excises and Salt Act, 1944 (1 of 1944). TABLE S.No. Description of inputs Description of final products (1) (2) (3) 1. All goods falling within the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than the following, namely, All goods falling within the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than the following, namely, - (i) goods classifiable under a....
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....s there is no suppression or malafide intention on part of the Appellant. Thus in our above observations and findings on fact as well as on the basis of orders passed by the Tribunal, Hon'ble High Court and Hon'ble Apex Court supra we do not find any reason to demand duty from the Appellant. We thus hold that the demand and penalty confirmed against the Appellant are not sustainable on multiple count s as discussed above and requires to be set aside. 13. Accordingly the impugned order is set aside and the appeal is allowed with consequential reliefs, if any, in accordance with law. Miscellaneous application is disposed of accordingly. 4.3 The Honourable Supreme Court in the case of Triveni Industries Ltd. dealing with identical issue observed as under : "19. It appears that the aforementioned two cases - Mittal Engineering Works (P) Ltd. and Quality Steel Tubes (P) Ltd. (supra), were not referred to in Sirpur Paper Mills Ltd.'s case. Further, in the instant case it is a common ground that a turbo alternator comes into existence only when a steam turbine and alternator with all their accessories are fixed at the site and only then it is known by a name different from the....