BEVCON WAYORS PRIVATE LIMITED Vs. CCE

JUDGEMENT

(1.) This stay application is filed by the applicants for waiver of pre -deposit of duty amounting to Rs. 22,17,271 and penalty of Rs. 1,00,000 and stay of the recovery proceedings.

(2.) After hearing for some time with reference to the stay application filed by the party, we find that the matter itself can be disposed of. Accordingly, the appeal was taken for regular hearing by waiving the pre -deposit required to be deposited for the purpose of hearing this appeal.

(3.) Shri Subrahmanym, learned Consultant, appearing for the appellants, submitted that the issue relates to non -excisable nature of the pertinent or the Conveyors being Immovable Property. The activity undertaken by the party in the instant case does not amount to manufacture and the activity is only attributable to Immovable Property. Conveyor system, right from their emergence or inception of the construction, are permanently embedded or grouted to earth and arise as a result of in situ construction. He said that the specific plea was taken by the party from the beginning, even in reply to Show Cause Notice, it was clearly stated that those which were in situ fabricated resulting into or being immovables from the time the in situ fabrication is completed and as such not being subject to Central. Excise duty. Instead of considering this specific plea, the Adjudicating authority has proceeded to observe that the contention of the assessee that 'their goods, after their erection become immovable in nature and, therefore, do not attract Central Excise duty' and 'that the goods are to be classified under Chapter Sub -Heading No. 7308.50 of the Central Excise Tariff Act, 1985', is not within the ambit of the Show Cause Notice and do not merit any discussion in the present order. He said that the Commissioner had grossly erred in not dealing with the specific issue and on this ground alone the order is liable to be set aside.