TaxTMI 
TaxTMI 
2021 (1) TMI 1015
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.... banquet functions on a large scale, from its premises at Ambience Golf Drive, Near Caitriona Apartment, Behind Ambience Mall, Gurugram, Haryana. The said location is among the premier locations for wedding functions in Delhi NCR. 2.2 The Appellant creates a temporary structure (i.e. a hall) on the above mentioned premises, though the following process: 2.2.1 A hangar/frame is created for the entire structure by using Iron and steel pillars and sheets, pipes, 'ballies', and angles and the same has been tightened up with nuts and bolts. 2.2.2 This frame is covered with iron sheets, and canvas, for coverage and water-proofing and Plywood is used in the inner portion to make the roof smooth and then the decoration is done. The said frame is also decorated on the outside, through design modifications and sheet material, to resemble the thematic identity of the interior; 2.2.3 Pictures of the structure & the hall during construction and dismantling process, along with the exterior and interior view of thematic product season-by-season, attached for your kind perusal. 2.2.4 Further, there is no permanent affixation of pillars and pre-fabricated shelters to the eart....
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....er, 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." 3.3 A plain reading of Section 3 (26), shows that it defines "immovable property" as things attached to the earth or permanently fastened to anything attached to the earth. The term "attached to the earth" has not been defined in the General Clauses Act, 1897. Section 3 of the Transfer of Property Act, however, gives the following meaning to the expression "attached to earth": (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls and buildings; (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached. 3.4 Also, Supreme Court in the Case of Triveni Engineering (supra), has defined things which is said to be Movable and Immovable. Also, Supreme Court heavily relied on the Test of Marketability to dec....
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....rlier view in the Triveni Engineering & Indus Ltd. v Commissioner of Central Excise 2000 (120) ELT 273 (SC) = 2000 (8) TMI 86 - SUPREME COURT: finally concluded what is the "permanency test" in the case of Solid and Correct Engineering (supra). In Solid and Correct Engineering (supra), the court after analyzing its previous judgments, stated the controlling principle as follows: "33. It is noteworthy that in none of the cases relied upon as specified above was there any element of installation of the machine for a given period of time as is the position in the instant case. The machines in question were by their very nature intended to be fixed permanently to the structures which were embedded in the earth. The structures were also custom made for the fixing of such machines without which the same could not become functional. The machines thus becoming a part and parcel of the structures in which they were fitted were no longer moveable goods. It was in those peculiar circumstances that the installation and erection of machines at site were held to be by this court, to be immovable property that ceased to remain movable or marketable as they were at the time of their purch....
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....ibunal in as much as on removal a turbo alternator gets dismantled into its components - steam turbine and alternator. It appears that the Tribunal did not keep in mind the distinction between a turbo alternator and its components. Thus, in our view, the test of permanency fails." The Supreme Court, however, later, in Solid and Correct Engineering (supra) concluded that any plant fixed by nuts and bolts to a foundation involving no assimilation of the machinery with the structure permanently and where the civil foundation was necessary to provide a wobble free operation to the machine, the test of permanency fails. 4.5 Further, also in the case of lspat Industries Limited v Commissioner of Central excise 2006 ELT 164 = 2005 (9) TMI 171 - CESTAT, MUMBAI, was a case where the High Court allowed credit of duty paid on angles, channels, plates, etc. which were used in errection, installation and commissioning of the machinery (immovable). The Revenue's appeal against this judgment was rejected by order dated 19.07.2007 in Central excise Appeal No.187 of 2006, by the Supreme Court. 4.6 Also, in Lloyds Steel Industries v Commissioner of Central Excise 2004 (64) RLT 732 = 200....
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....rt judgments have been delivered on this issue in the recent past and some of the important ones are mentioned above. 4.9 Further, CBEC through its Circular No. 58/1/2002-CX dated 15.01.2002, was relied on, to say that when the final product is considered as an immovable and hence, non-excisable, the same product in CKD condition or unassembled form will also not be dutiable as a whole by applying Rule 2 (1) of the Credit Rules of Interpretation of the Central Excise Tariff. The relevant portion of the circular is extracted hereunder for reference: "4. (vi) if any goods installed at site (example paper making machine) are capable of being sold or shifted as such after removal from the base and without dismantling into components/parts, the goods would be considered to be movable and excisable. The mere fact that the goods, though being capable of being sold or shifted without dismantling, are actually dismantled into their components / parts for ease of transportation etc. they will not cease to be dutiable merely because they are transported in dismantled condition. Rule 2(a) of the Rules for the Interpretation of Central excise Tariff will be attracted as guiding fact....
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....n for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business". 5.4 Now, as per the definition of goods some movable property is excluded from the category of goods whereas at the same time, some immovable properties are treated as goods. But the terms movable and immovable property have not been defined under the GST Act. In laymen terms, any goods that can moved is a movable property and which cannot be moved is immovable property. 5.5 But the General Clauses Act 1897 and the Transfer of Property Act defines both these terms. Section 3 (26) of the General Clauses Act says: "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". Whereas, Section 3(36) defines movable property as "property of every description, except immovable property". So as per this definition, any property which does not qualify to be immovable property, is a movable property. This definition of immovable property under the General Clauses Act is affirmative in nature a....