ORDER
U.L. Bhat, J. (President)
1. Appellant is represented by Mukesh Chadha. He did not make any submission but invited our attention to the paper book. We have heard Shri M. Ali JDR and perused the papers.
2. The appellant, engaged in the manufacture of electroplating machinery, was supplying such machinery to various customers, according to their specifications and following invoice value procedure, was paying duty on the invoice price. The period covered by the dispute is 1-4-1984 to 31-3-1986 during which period, many contracts had been executed. It was found that over and above the price of components manufactured in the factory and carried to the premises of the buyers for installation and commissioning, appellant had collected under separate documents, charges for designing and development and consultancy, errection and commissioning. Show cause notice dated 28-4-1989 was issued referring to the above facts and stating that excise duty was payable on such charges also and alleging suppression of facts with intent to evade duty involving the larger period under proviso to Section 11A on the Central Excise Act, 1944. Though appellant resisted the notice, the Additional Collector confirmed the demand and imposed penalty of Rs. 10,000/-. The plant and machinery were confiscated with option to redeem payment of fine of Rs. 10,000/-. This act is under challenge.
3. The impugned order specifically stated that components of the machinery are manufactured by the appellant in the factory, taken to premises of buyers in unassembled condition and assembled at such premises. The appellant did not deny this fact. That being so, the electroplating machinery as such came into existence not in the appellant’s factory but in the premises of various buyers. Appellant has no case that the machinery when installed in such premises, became immovable property. It must therefore follow that the excisable goods came into existence only at the premises of buyers and that being so installation charges would be includible in the assessable value. Since buyers required machinery of their own specifications, charges for designing and development for the purpose would also be includible in the assessable value. However, the same cannot be said of charges for commissioning. When the installation is complete, ordinarily the machinery would have came into existence. Commissioning is necessary to make the machinery operational for the purpose of the customer. Therefore charges of machinery can not be included in the assessable value.
4. The last item is consultancy charges. The order proceeds on the basis that the consultancy was in relation to machinery itself, at a stage prior to the designing and development. This is not rebutted by the appellant. That being so, in our view, charges of consultancy also are includible in the assessable value.
5. We set aside impugned order to the extent it relates to commissioning charges and direct deduction of the same from the assessable value. Redetermination of assessable value and differential duty would be necessary. For this purpose the case is to go back. The confiscation order and penalty imposed do not appear to be justified in the facts of the case and are set aside.
6. The impugned order is set aside to the extent indicated above and the case is remanded to the jurisdictiorial adjudicating authority for passing a fresh order quantifying the amount of differential duty, after giving appellant an opportunity of personal hearing.
7. The appeal is allowed.