Jyoti Balasundaram, Member (J)

1. The issue for determination in the above appeal against the order dated 17-10-1985 of the Additional Collector of Central Excise, Indore is whether assembly, erection and commissioning of "Evaporator J" plant amounts to manufacture of excisable goods leviable to duty under TI 68 of the Schedule to the erstwhile Central Excise Tariff. The demand of duty of Rs. 1,05,000/- has been confirmed on Evaporator J plant assembled and erected at site in Jan. 84 in the Staple Fibre Division of the appellants' company and a penalty of Rs. 20,000/- has also been imposed by the adjudicating authority. Hence this appeal.

2. We have heard Shri J.P. Gupta, Learned Senior Counsel and Shri S.K. Sharma, learned D.R.

3. The appellant company has a Staple Fibre Division and an Engineering Division at Nagda, M.R In the course of manufacture of viscose fibre at the appellants' factory at Nagda, Sodium Sulphate in liquid form is obtained as a by-product. The plant known as "Evaporator J" is necessary to dry up the liquid sodium sulphate and to reduce it to powder form for packing it and making it marketable. Evaporator J is a plant consisting of several vertical tankers of large dimensions having outlets for pipe connections and pipes of varying sizes connecting the various segments of the said plant. The appellants imported some of the parts and articles from abroad and cleared the same on payment of excise duty. Some articles worth Rs. 1,64,000/- were manufactured in the appellants' Engineering Division at Nagda and no excise duty was paid on these articles as they were exempt under Notification 118/75-C.E., dated 30-4-1975 as they were not complete machinery, and some articles worth about Rs. 1.78 lakhs were purchased from the market. The uncontroverted position is as follows :

4. A cement concrete platform was constructed upon which iron girders and the supporting structurals were fixed. Thereafter, different parts and the fittings are laid and fixed by stages on the said foundation. The segments of the tankers are fixed one after the other on the said structure and welded and pipes of different dimensions are fixed one after the other in the tankers after making holes therein. The stair-case is laid on the floor for reaching and operating and servicing various parts of the plant. The whole plant is thus built by fixing to the platform and welding. The construction of the plant was spread out over a period of six months and completed in Jan. 84. The entire assembly and erection is carried out at site. This process of construction as set out in the statement of facts in the memorandum of appeal is undisputed as is evident from the fact that the Department has no comments to offer on the factual position in their cross-objection dated 24-1-1986. During the course of personal hearing the appellants have also filed an affidavit of one Shri Kadam Kanhaiya Lal, Assistant Civil Engineer of the appellant company setting out the process of erection of the plant and also giving the details relating to height of the plant (56 feet approximately) and also stating that the plant is fixed and erected to the earth and is in the nature of movable property. This affidavit has not been rebutted by the Department. Therefore, the factum of erection of plant at site is not in dispute. The contention of the learned Senior Counsel is that the Evaporator plant was built and constructed by stages on cement concrete foundation and permanently laid and embedded in the ground and it is immovable property and not "goods" falling within the purview of CESA, 1944. He further submits that the finding in para 4.6 of the impugned order that the installation of Evaporator cannot be considered as immovable property as the same was not attached to the ground is contrary to the evidence on record. He cites the following decisions of the Tribunal to support the proposition that the assembly and erection of plant at site does not result in manufacture o