ORDER
Jeet Ram Kait, Member (T)
1. The stay application and the appeal are taken up together for decision as per law as the issue lies in a short compass.
2. Ld. Advocates, Shri N. Venkatraman and Shri Muthuvenkat Ra-man have invited our attention to Para 5(iii) of the Board’s Order No. 58/1/2002-CX., dated 15-1-2002. This clarification of the Board is on Refrigeration/Air-conditioning plants and has clarified that these plants are basically systems comprising of compressors, ducting, pipings, insulators and sometimes cooling towers etc. They are in the nature of systems and are not machines as a whole. They come into existence only by assembly and connection of various components and parts. Though each component is dutiable,
for which they have already paid duty, the refrigeration/air-conditioning system as a whole cannot be considered to be excisable goods. The Air-conditioning units, however, would continue to remain dutiable as per the Central Excise Tariff, Since the impugned goods are air-conditioning plant and, therefore, are immovable property and are not ‘goods’ and are not excisable. He also invited our attention to the judgment rendered by majority order by the Tribunal in the case of Blue Star Ltd. v. CCE, Jaipur, 2002 (143) E.L.T. 391 (Tri. – Del.) wherein it has been held that Central Air-conditioning Plant installed, tested and commissioned at site as per customer’s specifications’ on turnkey basis and consisting of components manufactured at noticee’s factory brought to site as well as procured from market, are not marketable and hence are also not dutiable. They are incapable of moving as such and requiring dismantling into components causing damage beyond repair to parts and parts are only capable of being taken to market and not the whole plant. Since the marketability test is not satisfied, the plant has to be held to be as not liable to duty in view of CBEC’s Order No. 58/1/2002-CX., dated 15-1-2002 and such goods are not coming within the meaning of “manufacture” under Section 2(f) of Central Excise Act, 1944. He, further, submitted that this plea was taken by them before the Id. Commissioner as can be seen from para 21 of the order-in-original in which it has been categorically mentioned that copy of Board’s order issued under Section 37B of the Act was submitted and they had pleaded for dropping further proceedings in the matter. Ld. Advocates, further, submitted that Board’s order dated 15-1-2002 has not been considered by the learned Commissioner despite the fact that he has taken note of the submission of the above Board’s order issued under the provisions of Section 37B of the Act. Ld. Counsels, therefore, submitted that the impugned order is required to be set aside and the case is required to be remanded back to the original authority for deciding the case afresh after taking into consideration the order of the Board dated 15-1-2002 issued under Section 37B of the Act and also the judgment rendered by the Tribunal in the case of Blue Star Ltd. v. CCE, Jaipur (supra) wherein also Board’s Order No. 58/1/2002-CX., dated 15-1-2002 has been considered.
3. Ld. SDR Shri G. Sreekumar Menon reiterated the findings as contained in the order-in-original and does not have any objection for sending the case back to the original authority for de novo consideration.
4. We have considered the submissions made by both sides and we are of the considered opinion that the Board’s order, which clarifies specifically about the refrigeration/air-conditioning plants in para 5 of the order passed by the CBEC in exercise of powers conferred under Section 37B of the Central Excise Act, 1944, has not been considered by the Commissioner and he has not given his finding, though he has taken on record the Board’s order submitted by the appellants during the course of proceedings before the original authority. We, therefore, direct the original authority to take into consideration the Board’s order dated 15-1-2002 and also the judgment rendered by the majority view of the Tribunal in the case of Blue Star Ltd. v. CCE, Jaipur (supra) by setting aside the impugned order. Appellants shall be at liberty to file further submissions, if any, and they shall be given a reasonable opportunity of being heard before deciding the case in the de novo proceedings consideration. The appeal is allowed by way of remand. Ordered accordingly.