1. These two appeals of the appellants Company and the director arise from the order in Appeal No. 146 & 147/2000 dated 21.12.2000. The appellants are required to pre-deposit duty amount of Rs. 3,81,603/-, and penalty of Rs. 10,000/- each on the company and the Director 2. The learned Consultant for the appellants submits that they have already pre-deposited Rs. 3 lakhs and they seek waiver of pre-deposit of the balance of duty and the entire penalty amounts on the company and the Director and stay of recovery of the same. He submits that the appeals can be taken up and remanded for de novo consideration in view of the Board's Clarification given by Circular No. CBC & C Section 37B Order No. 52/2/98-CX dated 2.4.1998 wherein they have given clarification with regard to the manner in which the Hon'ble Apex Court judgement rendered in the case of Sirpur Paper Mills reported in 1988 (97) ELT 3 (SC) is required to be applied. It is his contention that they are manufacturing Water purifying system, on-line, system which becomes an immovable property on erection. It is not moveable property and goods for the purpose of excisablility. He submits that the item is in the nature of MS tanks ultraviolet purifiers and micron filter housings of Stainless steel which are mounted on the MS base frames and the item is embedded on the earth and on erection it cannot be re-fixed on another place as they become scrap. He submits that this issue has since been taken up by the Hon'ble Supreme Court in the case reported in 2001 (44) RLT 113 and the matter was remanded for de novo consideration and re-decide the issue in the light of the earlier judgements of the Hon'ble Apex Court. He submitted that the test of marketability and immovable nature has been laid down by the Supreme Court in the case of Triveni Engineering reported in 2000 (120) ELT 273. He submits that the Tribunal in the case reported in 2001 (45) RLT 873 have remanded the matter for re-determination in terms of the two judgements. He submits that storage tanks have been held to be immovable property in the latest judgment of the Supreme Court in the case of JST Engineering Services reported in 2001 (46) RLT 462 (1). It is his contention that the lower authorities have not examined the issue in the light of these latest judgements but have only applied the ratio of the judgement in the case of Sirpur Paper Mills which judgement has now been distinguished. He submits that in view of the above, the case may be remanded so that the appellants can demonstrate that on erection the item becomes an immovable property and the test laid down by the Supreme Court is fully satisfied.
3. The learned DR submits that the goods came into existence before the erection and the goods were marketable and hence the Sirpur Paper Mills decision has been rightly followed. He submits that the appellants do not have a strong case on merits.
4. On consideration of the submissions made we notice that the Board has issued an order baring No. 52/2/98-VCX dated 2.4.1998 under Section 37B and the said order is binding on the authorities wherein the Board has clarified the as to how the judgment in the case of Sirpur Paper Mills is required to be interpreted and applied. We also find that the Tribunal in the case of Triveni Engineering has analysed the fact and that storage tank on erection does not become goods and are immovable property only. This judgement has been rendered after examining various other judgments of the Tribunal and the Supreme Court judgement. The Tribunal has also analysed the evidence on record and in the present case the learned Consultant submits that after erection the item becomes an immovable property. Therefore, the test as laid down in the case of Triveni Engineering is required to be applied and got verified.
Therefore, while granting waiver of pre-deposit of the balance amount of duty and the entire penalty on the appellants and stay of recovery of the same, we take up the appeals and remand the same to the original authority for de novo consideration. The original authority shall determine the case after taking the evidence that would be produced by the appellants and also demonstrating that the item on erection becomes an immovable property and if removed it cannot be re-erected at other place as it becomes scrap. The appellants shall be heard fully before the case is decided in the light of various judgements of the Hon'ble Apex court. Thus the appeals are allowed by remand.