TaxTMI 
TaxTMI 
2026 (1) TMI 778
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.... 2. Briefly stated facts of the present case are that M/s Consolidated Engineering Company ('The Appellant') is a partnership firm engaged in fabrication and installation of aluminium and alucobond aluminium curtain walls, doors, windows and their frames, thresholds for doors, roofing frames made of sections and alucobond aluminum; retail visual identity elements, namely, spreaders, facility signs, direction signs, moulded logos fixed on walls, monoliths etc. The Appellant was awarded a number of contracts/work orders interalia basis the tenders issued by Indian Oil Corporation Ltd ('IOCL') for supply and installation of Retail Visual Identity ('RVI') Elements at their retail outlets i.e. petrol pumps across the country. As per the contracts/work orders, the RVI Elements are to be supplied and installed at the outlets of IOCL. The primary raw materials required for the fabrication of the RVI Elements are Aluminium Composite Sheets/Panels ('ACP'), Aluminium Sections and Mild Steel Sections and other raw materials like electrical components, wires, screws, nuts & bolts, neoprene etc. The Appellant purchased such raw materials from various suppliers on which machinin....
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....ers supplied to IOCL on the ground that the same were manufactured by the Appellant in the factory and were cleared from the factory without payment of excise duty on the entire value of the contract. Demand was also proposed on aluminium doors, windows and frames cleared to others on the basis that the same were manufactured in the factory of the Appellant and therefore, excise duty is leviable on the entire contract value. A personal penalty of Rs.14,00,000/- under Rule 26 of the Central Excise Rules was also proposed to be imposed on the Appellant No.2 on the ground that he was involved in clandestine removal of excisable goods in an irregular manner being aware that the same were dutiable and were liable for confiscation. 2.2 After following the due process, the learned Adjudicating Authority, vide the impugned order, confirmed the demand proposed in the show cause notice along with applicable interest and imposed an equal penalty, after invoking extended period of limitation; and a personal penalty was also imposed on the Appellant No.2. Hence, the Appellants have preferred the present appeals before us. 3. Heard both the sides and perused the material on records. 4. ....
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....stallation of the RVI components at the site. She also submits that parts of the RVI elements in the form that they are cleared from the factory do not have any buyer as the same are made as per the specifications of IOCL and thus cannot be used by any other company. She further submits that parts of the RVI Elements are not capable of being bought and sold for a consideration in the form that they exist when they are cleared from the factory, and thus they cannot be deemed to be marketable. She places reliance on the following decisions wherein it has been held that if the product is not saleable, the same is not marketable and thus does not amount to manufacture: * Flex Engineering Ltd vs. CCE - 2012 (276) ELT 153 (SC) * UOI vs. Delhi Cloth and General Mill - 1977 (1) ELT J199 (SC) * Hindustan Polymers vs. Collector of Central Excise - 1989 (43) ELT 165 (SC) * Collector of Central Excise vs. Ambalal Sarabhai Enterprises - 1989 (43) ELT 214 (SC) * Union Carbide India Ltd vs. Union of India & ors - 1986 (24) ELT 169 (SC) 4.3 She further submits that it is s settled law that the burden to prove marketability of the product to hold the ....
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.... qualify as movable goods and therefore, not excisable goods. She also submits that in the present case, the RVI Elements are permanently attached to earth and there is no intention to move them from one place to another and if the same are dismantled, the same would result in substantial damage and the said components cease to be RVI Elements. In this regard, she places reliance on the following decisions wherein it has been held that if the goods are dismantled and gets substantially damaged, then the same qualify as immovable property: * Secure Mobile India and others vs. Commissioner of Central Excise, Delhi - 2019 (5) TMI 1430-CESTAT New Delhi * Triveni Engineering & Industries Ltd & ors vs. CCE - 2000 (120) ELΤ 273 (SC) * TTG Industries Ltd vs. Collector of Central Excise, Raipur - 2004 (167) ELT 501 (SC) * Quality Steel Tubes (P) Ltd vs. Collector of C.Ex. - 1995 (75) ELT 17 (SC) * M/s Bharti Airtel Ltd vs. Commissioner of Central Excise, Pune - 2025 (391) ELT 3 (SC) 4.5 The learned Counsel further submits that in the impugned order, the department has held that the RVI Elements under dispute are illuminated signs which are....
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....e were not subject to manufacturing process and cleared to sites as such. In this regard, she places reliance on the following cases, wherein the Courts have held that value of bought-out items would not be included in the assessable value: * Mihir Engineers (P) Ltd vs. Collector of Central Excise, Ahmedabad - 1999 (107) ΕLΤ 756 (Tribunal) * Commissioner of C. Ex., Nagpur vs. Unitech Power Transmission Ltd - 2018 (364) ELT 1048 (Tri - Mumbai) * Transrail Lighting Ltd vs. Commissioner of C. Ex. & S.T., Silvasa - 2023 (385) ELΤ 749 (Tri - Ahmd) * India Tube Mills & Metal Industries vs. Commissioner of C. Ex., Mumbai - 2017 (353) ELT 353 (Tri - Mumbai) * Commissioner of Central Excise, Mumbai vs. Voltas Ltd - 2006 (196) E.L.T. 358 (Tri. - Mumbai) [Maintained in Supreme Court - 2016 (336) ELT A135 (SC)] * Kerala State Electronics Dev. Corpn. Ltd. vs. Commr. of C. Ex., Cochin - 2004 (171) ELT 281 (Tri - Bang) [Maintained in Supreme Court - 2006 (199) ELT A130 (SC)] 4.8 The learned Counsel further submits that in the impugned order demand of excise duty has also been confirmed on the aluminium doors, windows and the....
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....tation because the show cause notice was issued on 04.07.2011 for the period 2006 to 2009 which is beyond the normal period of limitation. She further submits that the extended period of limitation cannot be invoked as there was no wilful suppression of any fact, fraud or misstatement on part of the Appellant who has duly filed the returns regularly and disclosed the goods manufactured in the factory and paid excise duty on the same on the respective tariff headings. She also submits that the department was very well aware about the activities of the Appellant which is also evident from the fact that for the previous period, the similar demand in respect of aluminium doors, windows and other aluminium structures was raised which was subsequently dropped by the Commissioner. She also submits that the Appellant was under the bona fide belief that the RVI Elements once installed become immovable in nature and hence do not qualify as goods and not subject to excise duty. She further submits that the said issue had been a matter of interpretation of legal provisions, therefore, the extended period of limitation cannot be invoked. In this regard she relies on the following cases: ....
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....urther, we find that the Adjudicating Authority in the impugned order, has wrongly confirmed the demand of differential amount of excise duty on the ground that the RVI Elements were manufactured by the Appellant in its factory and the same were cleared from the factory in CKD condition which were assembled at site and fixed to civil foundation with nuts and bolts to make them stand still. We also find that in the case of RVI Elements, the Test of Marketability has also not been satisfied because these parts, in the form that they are cleared, are not capable of being used for any other purpose than the fabrication and installation of RVI Elements at the retail outlets of IOCL only. We also find that the parts of the RVI Elements are not capable of being bought and sold for a consideration in the form that they exist when they are cleared from the factory, and thus they cannot be deemed to be marketable. The department has failed to prove that the RVI Elements are freely marketable to be exigible for the excise duty as held in the decisions cited supra. We also find that the RVI Elements once fixed with civil foundation, are attached to the earth and are 'immovable property' becaus....