Triveni Engineering and Inds. Vs. Commr. of C. Ex.

.....out items like alternator control panel etc. by the impugned order the commissioner confirmed the demand of rs. 16,30,68,192/- on 80 turbo alternator sets erected on and commissioned by the appellant at the various sites of the customers during the period may, 1994 to february, 1999. a differential duty of rs. 47,20,345/- was also levied on 69 steam turbines manufactured during the above period which were undervalued for payment of duty. penalty under section 11ac and separate penalty under rule 173q also imposed.the correctness of these demands are under challenge.triveni engineering and inds. ltd. v.commissioner of central excise, 2000 (120) e.l.t. 273 their lordships took the view that the combination of turbine and alternators erected on foundations constructed on earth are immovable property are not excisable goods. so the duty demanded on this count has to fail.3. demand of rs. 47 lakhs and odd was sustained on the ground that the appellant bought out certain items like alternators from third parties and sold the same to its customers at higher price and made profit out of it. the profit so obtained in the trading activities should also go to enhance the value of turbines according to the department and duty was assessed accordingly. this view of the department cannot be sustained in view of the law stated by their lordships of the supreme court in baroda electric meters ltd. v. collector of central excise [1997 (94) e.l.t. 13 (s.c.)].4. in the light of the decisions of the supreme court referred to earlier demand of duty made against the appellant on the above mentioned two counts are unsustainable. since there can be no duty liability, penalty cannot also be imposed. consequently, the order impugned has to be set aside in its entirety. we do so. appeals are allowed and order impugned are set aside with consequential relief, if any.