ORDER
G.R. Sharma, Member (T)
1. M/s. Dalsinghpara Tea Estate have filed this appeal assailing the impugned order passed by the Additional Collector of Central Excise and Customs, Siliguri. The Additional Commissioner in the impugned order had observed that “from the foregoing discussions, I hold the view that M/s. Dalsinghpara Tea Estate manufactured overhead conveyors falling under Heading 84.28 of Chapter 84 of the Central Excise Tariff Act 1985 with different parts purchased and made from and by different parties as mentioned earlier and is utilising the same in their factory in contravention of different provisions of Central Excise Rules and Act 1944. They have done so without payment of proper Central Excise duty as leviable on the said overhead conveyors. I, therefore, order under Section 11A of the Central Excise Act, 1944 read with Rule 9(2) of the Central Excise Rules, 1944 that M/s. Dalsinghpara Tea Estate should pay Central Excise duty amounting to Rs. 1,27,255.54. I also impose a penalty of Rs. 20,000/-only upon the said assessee under Rule 173Q of the said Rules.”
2. The facts of the case briefly stated are that Central Excise Officers visited the factory premises of M/s. Dalsinghpara Tea Estate a’nd noticed two
24/143/3
overhead conveyors installed by the said factory. It was alleged that overhead conveyor in question falling under Tariff Heading 84.28 of Chapter 28 were erected by M/s. Dalsinghpara Tea Estate for the purposes of withering and for formenting operation. A show-cause notice was issued to the appellants asking them to explain as to why the duty should not be demanded on the two overhead conveyors and why the penalty should not be imposed. In reply to the show-cause notice, the appellants submitted that they bought duty paid parts of overhead conveyors from M/s. Vinor System Pvt. Ltd.; that simply by installation of the same no new product emerges and hence the said conveyor systems did not attract further Central Excise duty. After considering the submissions, Id. Additional Collector held as indicated in the preceding paragraph.
3. Arguing the case for the appellants, Shri S.K. Roychowdhury, Id. Counsel submits that the appellants purchased bought out parts of conveyor system. Duty was paid by the manufacturer of the parts bought out by the appellants. He submits that the parts were installed in the premises of the appellants part by part to make the conveyor system. Thus he submits that the conveyor system got embedded to the earth and were not the goods for purpose of levy of Central Excise duty. He submits that there are a number of Tribunal’s decisions on the issue holding that the installation of conveyor system made out of duty paid parts is not goods for purpose of levy of Central Excise duty as they became immovable property. Supporting this contention, he cited and relied upon the decision of this Tribunal in the case of Fen-ner (India) Ltd. v. Commissioner of Central Excise, Nagpur reported in 2001 (129) E.L.T. 644 (Tri.-Mum.). He also cited and relied upon the decision of this Tribunal in the case of Ludhiana Bottling v. Collector of Central Excise, Chandigarh reported in 1997 (93) E.L.T. 776 (Tribunal). He also refers to the Hon’ble Supreme Court’s decision in the case of Triveni Engineering & Industries Ltd. v. Commissioner of Central Excise reported in 2000 (120) E.L.T. 273 (S.C.). Ld. Counsel submits that the ratio of these decisions covers the case of the appellants on all fours. He, therefore, prayed that the appeal may be allowed.
4. Shri T.K. Kar, Id. SDR reiterates the findings of the authorities below.
5. We have heard the Id. Counsel for the appellants as also the Id. DR. We note that in the instant case, overhead conveyor was erected in the factory premises of the appellants out of the duty paid bought out items. We note that the question, therefore, arose whether the duty is payable on the conveyor system fabricated at the factory premises of the appellants. We find that in installing and erecting the overhead conveyor it became embedded to earth and can be called as an immovable property. Since it is an immovable property and cannot be brought to the market for purpose of selling and purchase, therefore, it is not goods for purpose of levy of Central Excise duty. For this view, we find support from the decision cited by the Id. Counsel for the appellants. We note that in the case of Fenner India Ltd., this Tribunal held that conveyor system assembled from components stage by stage at place of assembly is not capable of transportation as such to any other place without dismantling therefore becomes an immovable property and does not amount to manufacture for purpose of Section 2(f) of the Central Excise Act, 1944.
6. This Tribunal in the case of Ludhiana Bottling held that the appel-
lant fabricated and erected two conveyor systems in its factory for transmission of crates of bottles of aerated water and the Revenue assessed the same to duty under Heading 84.28 of CET Act, 1985. From the reply given to Collector by the appellant, the process of erection of the conveyor system which has not been disputed by the Revenue shows that first the driven unit and the driver units are routed to the earth at the requisite place and the stands are embedded to earth with equal distance in between them. Subsequently, the system is erected on these stands and the driven units. We have also looked into the photos of the system and the process of erection of the system as explained by the Id. Advocate. Respectfully following the decision of the Apex Court in the case of Quality Steel – 1995 (75) E.L.T. 17 (S.C.) and noting that the goods have been erected being embedded to earth, we hold that the same do not satisfy the test of being goods within Section 3 of the Central Excise Act, 1944 on account of their being immovable as also on account of their being non-marketable goods. We are allowing the appeal on the first question of excisability of the goods.
7. In the case of Triveni Engineering & Industries Ltd., the Hon’ble Apex Court held that installation or erection of turbo alternator on the platform specially constructed on the land cannot be treated as a common base, therefore, such alternator would be immovable property as such it cannot be excisable goods falling within the meaning of Heading 85.02 of Central Excise Tariff Act, 1985.
8. Having regard to the above discussions and following the ratio of the decisions of this Tribunal and the Hon’ble Apex Court cited above, we hold that the overhead conveyor system is not goods for purpose of levy of Central Excise duty. Accordingly, the appeal is allowed. Consequential relief, if any, shall be admissible to the appellants in accordance with law.