TaxTMI 
TaxTMI 
2018 (11) TMI 966
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..... 25,87,406/- along with interest and various penalties imposed on the appellant. 2. The brief facts of the case are that the appellant is engaged in the fabrication of large size Chemical Storage Tank, Reactors and Reservoirs/Tanks out of duty paid Steel Plates, Angles, Challans and other duty paid consumables items. On 02.12.2011 preventive staff of Central Excise Department visited the factory premises of the appellant and did not find any finished goods. The statement of Shri Iqbal Singh was recorded as the appellant has been fabricating large tanks for various clients, namely, M/s Teva API India Limited, M/s Regent Drugs Limited, M/s Nestle India Limited and other industries and also for M/s Indian Oil Corporation Limited, it was al....
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....ed in the activity of fabrication of various tanks at site, all these tanks has been fabricated by the appellant have been cleared from their factory in semi-condition and the complete tank has been fabricated by the appellant at site of their client. When the fabrication activity has taken at the site which is embedded to earth, therefore, it becomes in immovable, hence not excisable. In that circumstances, the adjudicating authority has already dropped part of the demand but in case of Indian Oil Corporation, fabrication work done, the demand has been confirmed. In fact, in the case of Indian Oil Corporation, the fabrication works has been executed by the appellant at site and those tanks are embedded to earth which which becomes immovabl....
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....of the submissions made by both the sides, we find that in this case the appellant is a fabricator of various kinds of tanks, reactors etc. and all works has been executed by the appellant at the site of the client and these tanks, reactors have been embedded to earth which becomes immovable property, therefore, all these tanks/reactors are not excisable as they cannot be removed as such. Admittedly, no finished goods has been fabricated by the appellant in their factory, in these circumstances, as the fabrication has done at site which become immovable property, therefore, no duty is payable by the appellant as the same is not excisable, therefore, the demand of Rs. 41,92,186/- confirmed by way of impugned order is not sustainable. Accordi....
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.... is extracted herein below: 12. on going through the all the invoices issued by the appellant for their fabrication activity of chimney/chimney parts, the appellant has not charge any service tax from their client and not recovered any amount towards service tax. The observation made by the Ld. Commissioner in the impugned order is without any basis and no such allegation has been made against the appellant in the show cause notice. The Ld. AR also failed to produce any evidence with regard the recovery of service tax by the appellant from their client, namely, M/s Nestle India Ltd. In that circumstances, we hold that the observation made by the ld. Commissioner (Appeal) in para 52 of the impugned order are without any evidence on record....