CCE Vs. SNOWMAN FORZEN FOODS LTD.

JUDGEMENT

(1.) This appeal filed by the Revenue is directed against the order in original No. 25/2000 dt. 28.11.2000 by which the Commissioner has dropped the proceedings in the matter on the ground that the industrial freezer is a huge structure equipped with machinery for freezing or preserving perishable goods and this structure cannot be moved to any other location as such but would have to be dismantled/broken up involving substantial damage to components and materials. Aggrieved by this order, Revenue has come in appeal on the ground that as per the Board's circular No. 153/2/98 -CX dt. 2.4.1998 wherein it has been ordered that plant and machinery which is assembled and erected at site would attract Central Excise Duty as leviable on excisable goods on the satisfaction of certain criteria viz. movability/marketability etc. Revenue has also submitted that the fact that the appellants had paid property tax for the structure and not for the machinery and therefore, it cannot be a ground for exclusion from the purview of the excisability. They have also referred to certain judgements of the Tribunal and the Hon'ble Apex Court.

(2.) Appearing on behalf of the Revenue Ld. SDR Smt. Bhaghya Devi reiterated the grounds in the appeal memorandum. Further she submits that in view of the circular No. 581/1/2002 -CX dt. 15.1.2002 issued from F. No. 174/26/99 -CX the case could be remanded back to the original authorities for fresh appreciation of the facts and to decide the case afresh.

(3.) Appearing on behalf of the Respondent Shri G. Seetharaman, Ld. Consultant submits that the issue has been decided by the Tribunal in the case of Wintech Taparia Ltd. v. CCE, Indore reported in 2002 (149) ELT 916 (Tri -Del) by which it has been held that Refrigeration plant installed and constructed at site, no a marketable commodity coming into existence as a result of manufacturing process and no duty is leviable on such 1 product under Section 3 of Central Excise Act, 1944. Ld. Consultant also refers to the another judgment of this Tribunal in the case of Carrier Aircon Ltd. v. CCE, Calicut wherein also it was held that Air conditioning plants are not capable of being taken to market and sold as such and transportable only in dismantled condition. Therefore, Air Conditioning system as a whole is not dutiable in view of the Board's circular No. 58/1/2002 dt. 15.1.2002. He also relied on the Supreme Court judgement rendered in the case of Triveni Engineering and Industries Ltd. v. CCE . In view of the above submissions, he submits that there is no need for remanding the matter to the lower authorities as Ld. Commissioner has also gone very thoroughly and examined the whole issue and has come to the conclusion that erection and installation of the Industrial Freezer does not amount manufacture of excisable goods and these are used as structural machinery for freezing or preserving perishable goods. Ld. Commissioner has also observed that this structure is spread over an area of 850 sq. ft. besides being grounded into masonry and this structure cannot be moved to any other location as such but would have to be dismandtled/broken up involving substantial damage to components and materials. She had also observed that the whole structure in dispute is assessed to property tax as a Building by the Mevalurkuppam Panchayat Union and it was in this back ground the Ld. Commissioner had dropped further proceedings in the matter.