2018 (7) TMI 1691 – AUTHORITY FOR ADVANCE RULINGS MAHARASHTRA – 2018 (15) G. S. T. L. 404 (A. A. R. – GST) – Levy of GST – Classification – composite supply – EPC Contract – standalone contract for transportation of Equipment for which separate consideration is received – procurement and supply of goods, transportation of goods from vendor, assembly and erection and commissioning – appellant is not a goods transport agency (GTA) as he is not issuing any consignment note – Whether transportation charges received by the applicant are liable to GST, especially when the applicant is not a goods transport agency (GTA)? – N/N. 12/2017 Central Tax (Rate) dated 28/06/2017.
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Held that:- From the co-joint reading of the clauses of the agreement, it can be safely concluded that the contract is a single contract. As such this agreement for Engineering Procurement and construction of Solar Power plant constitute composite supply in the nature of Works Contract. Thus impugned Supplies constit
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T-ARA-36/2017-18/B-43 Mumbai, dt. 04/06/2018 PROCEEDINGS (under section 98 of the Central Goods and Service Tax Act, 2017 and the Maharashtra Goods and Service Tax Act, 2017) 1. The present application has been filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as the CGST Act and MGST Act ] by Dinesh Kumar Agrawal, the applicant, seeking an advance ruling in respect of the following questions : Question No. 1 Whether Standalone Contract of transportation merits classification under Service code 9965 and whether same is exempt under Entry No. 18 of Notification No. 12/2017-CentraI Tax (Rate) dated 28 June 2017? Question No. 2 Whether composite supply of transportation and insurance merits classification under Service code 9965 and whether same is exempt under Entry No. 18 of Notification No. 12/2017-Central Tax (Rate) dated 28th June 2017? Question No. 3 Whether composite supply of 'lo
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ransit insurance' under EPC Contract merits classification under Service code 9965 and whether same is exempt under Entry No. 18 of Notification No. 12/2017-Central Tax (Rate) dated 28 June 2017? At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act/MGST Act would be mentioned as being under the GST Act . 02. FACTS AND CONTENTION – AS PER THE APPLICANT The submissions, as reproduced verbatim, could be seen thus – STATEMENT OF RELEVANT FACTS HAVING A BEARING ON THE OUESTION(S) ON WHICH ADVANCE RULING IS REQUIRED. Description of the Applicant The Applicant, an individual, is proposing
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for services (Service Contract). Under the Supply Contract, each line item is classified under appropriate HSN heading is priced separately and contractor do itemized billing to the customer. Similarly, for each component of the Service Contract, contractor do itemized billing to the customer. Supply Contract and Service Contract have separate consideration but also contains cross-fall breach clause in the contracts which ensure that the performance of both contracts are treated as a single-point responsibility and non-performance of any portion of any contract is treated as a breach of the other contract also. Typically, the scope of works under the EPC Contract and also the Service Contract, inter alia, includes 'loading of goods at the premises of the supplier, transportation in own/hired trucks to the project site, unloading and handling of goods at project site and in-transit insurance' ( SOW ), Standalone Contract: Parties may also have a standalone transportation contrac
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on the questions on which Advance Ruling is required as above. On hearing the applicant it was specifically informed to Shri. Dinesh Kumar Agarwal that his queries were very general and not having any specific details in respect to his proposed transaction and that there was not proposed draft contract. Shri. Dinesh Kumar Agarwal agreed to submit copies of draft contract at the earliest. When the matter was called for Final hearing Shri. Dinesh Kumar Agarwal submitted draft contract which is the nature of EPC contract. Applicant was also informed to submit written say within a week else the final plant as proposed in the EPC contract should not be treated as immovable property. Accordingly additional written submission given by the applicant on 08/05/2018 is as follow- Additional Written submissions given by the applicant on 08.05.2018 A Containing applicants interpretation of Law and Facts is as follows. The Applicant is a prospective contractor undertaking different works for supply
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he relevant clauses in the bid documents: 1.8 of GCC – Works – 'Works' shall mean and include the furnishing of equipment/materials at site and if required, supervision of unloading, storage, handling at site, erection, testing & commissioning and putting into satisfactory operation as defined in the Contract. 1.11 of GCC – Contract Price – The term 'Contract Price' shall mean the lump sum price quoted by the Contractor in his bid with additions and/or deletions as may be agreed and incorporated in the Letter of Award, for the entire scope of the works. 24.1 of GCC – Change of Quantity – During the execution of the Contract, the Owner reserves the right to increase or decrease the quantities of items under the Contract but without any change in unit price or other terms and conditions. Such variations unless otherwise specified in the accompanying Special Conditions of Contract and/or Technical Specifications, shall not be subjected to any limitations for the indivi
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I. Any payment under the Contract shall be made only after the Contractor's price break-up is approved by the Engineer. The aggregate sum of the Contractor's price break-up shall be equal to the lump-sum Contract Price. A Price Breakup over valuing those items of supply which will be shipped first will not be accepted. 34.7.3 of GCC – Inland transportation & Insurance – Inland transportation (including port handing) and inland insurance shall be paid to the Contractor on pro-rata to the value of the equipment received at site and on production of the invoices by the Contractor. However, wherever equipment wise inland transportation charges have been called for in the Bid Proposal Sheets and have been furnished by the Contractor, the payment of inland transportation charges shall be made after receipt of equipment at site based on the charges thus identified by the Contractor in his proposal and incorporated in the Contract. The aggregate of all such pro-rata payments shall
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id Form to indicate the following: i. Ex-works price of the equipment/materials (including tools and tackles etc.) ii. Charges for inland transportation (including port handling) and insurance for delivery of the equipment/materials up to their final destinations. iii. Lump-sum charges towards unloading, storage, insurance, erection, testing & commissioning. iv. Price break-up for spares in line with Clause 23.0 of this Section. v. Sales Tax and any other levies legally payable on the transactions between the Owner and the Bidder, vi. Any other charges as per the requirement of Special Conditions of Contract/Technical Specifications C. Nature and scope of works under EPC Contract for supply of Solar Power Plant The Applicant is a prospective contractor for supply of roof top solar power plant. As part of India's target to achieve 40 Giga Watts (GW) of rooftop photovoltaic (PV) by 2022, the Applicant foresee great demand in the present and future. A rooftop solar plant typically
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ort to the panels. Step 4: Module Installation: Once the module mounting structures are in place, solar modules (panels) are bolted onto the structures. Step 5: Cabling: Solar modules are connected in series with DC cables to the inverter, and with AC cables from the inverter to the evacuation point (customer's LT panel). Step 6: Inverter Connection and Grid Synchronization: Once the installation is ready, the inverter is charged, and begins synchronizing the solar power with the customer's existing electrical grid. Step 7: Seamless Power Distribution: Lastly, seamless power distribution begins as soon as the electrical connections are in place. Sample EPC contract comprises of 34 pages which includes Bill of Quantities. Following are the relevant clauses in the sample EPC contract: 1.1 of the Contract – definitions: Contract Price shall mean the amount to be paid by the Developer to the Contractor for the supply of goods and/or services as stipulated in Clause [please insert].
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quantity of each item delivered at Project Site. Such payment shall constitute full compensation for furnishing all Equipment and labour including testing and all other incidentals necessary to complete the Project. Any quantities which is set out in the Bill of Quantities are estimated quantities and are not to be taken as the actual and correct quantities. The Bill of Quantities list out name of the equipment, specifications, estimated quantity, price per unit and total price. It also lists out installation cost for each activity and transportation charges payable separately. Issues for consideration: D. Immovable property: The supply cannot be characterized as 'works contract' under section 2(119) of the GST Act as the activity does not relates to immovable property. As per Section 2(119) of the Act, works contract means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renova
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ilding on one hand and plant and machinery on another. The Central Board of Excise and Customs (CBEC) vide 37B Order 58/1/2002 – CX dated 15 January 2002 has clarified that if the items assembled or erected at site and attached by foundation to earth cannot be dismantled without substantial damage to its components and thus cannot be reassembled, then the items would be considered as immoveable. In the case of EPC contract for supply of roof top solar power plant, as explained above, solar panels are mounted on steel mounting structures which are mounted on the concrete blocks. Each and every item can be dismantled and disassembled without any damage and relocated to another site. In case of supply to PGCIL, the supply may result in immovable property or may not result in immovable property depending on the scope of works. Scope of supply in case of sub-station may involve erection of buildings, boundary wall and other civil works or it may be purely supply of transformers and switchge
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principal supply. Illustration.- Where goods are packed and transported with insurance, the supply of goods, packing materials, transport and insurance is a composite supply and supply of goods is a principal supply. Applicant understand that where a single price is charged for supply of goods, packing materials, transport and insurance, it would be considered as composite supply and tax will be payable at the rate applicable to principal supply. However, there is ambiguity on taxability when the Applicant charges separate price for transport and insurance. The customer is at liberty to take delivery of goods and transport the same in his own carriage or in a hired one. And therefore, such arrangement should not fall within the mischief of section 2(30) of the Act. F. Taxability If such transporter is considered as GTA, tax would be payable by the customer and if such transporter is not a GTA, no tax would be payable as same is exempt under entry 18 of Notification No. 12/2017-CentraI
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by road except by GTA is exempt (iv) Thus, as the Applicant is not a GTA, no tax should be payable on the transportation charge received from the customer, In light of the above, the Applicant prays the authority to issue rulings. Thus having regards to written submission dt. 08/05/2018 and the draft contract the question raised before this is reframed for consideration as below – Whether transportation charges received by the applicant are liable to GST, specially when the applicant is not a goods transport agency (GTA) . 04. HEARING The case was taken up for Preliminary hearing on dt. 03.04.2018 with respect to admission or rejection of present application when Sh. Dinesh Kumar Agrawal himself appeared. It was specifically informed to Sh. Dinesh Kumar Agrawal that his queries were very general and not having specific details in respect as his transactions and there was no proposed or draft contract. Sh. Dinesh Kumar Agrawal agreed to submit copies of draft contract at the earliest. J
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ts should not be treated as immovable property. Jurisdictional Officer, Sh. R.T. Nikam, Sales Tax Officer appeared and made written submission also which is considered for the fair decision. 05. OBSERVATIONS We have heard Shri. Dinesh Kumar Agarwal on the issue and have carefully gone through the written submission, and the proposed activity represented by draft agreement for Engineering, procurement and Solar Power Plant i.e. roof top photovoltaic (PV). In short, applicants submission is that he is not a goods transport agency (GTA) as he is not issuing any consignment note or the like and hence no tax is payable by virtue of Sr. No. 18 of Notification No. 12/2017 Central Tax (Rate) dated 28/06/2017. Applicant submits that as per clause 10 – which read as follow- The Contractor shall at its own risk and expense, be fully responsible for loading, transportation, delivery to the Project Site and unloading of the Equipment. The cost of transit insurance, if any, should be borne by the co
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obtain the title in goods only upon successful installation and commissioning of the Solar Power Project. 14 Contract Price and Payment: 14.1 Contract Price Payment shall be made at the unit rate stated in the Bill of Quantities at net actual quantity of each item delivered at Project Site. Such payment shall constitute full compensation for furnishing all Equipment and labour including testing and all other incidentals necessary to complete the Project. Any quantities which is set out in the Bill of Quantities are estimated and are not to be taken as the actual and correct quantities. 30.10 Entire Agreement This Agreement, including and together with any related annexures, sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and cancels all minutes of meeting, term sheet, memorandum of understanding, letter of intent etc. earlier discussion and negotiations of understandings, agreements, representations, warran
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xt issue to be decided is whether this composite supplies constitute Works Contract as defined U/s 2(119) of the GST Act. On this issue applicant submits that the contract is for supply of roof top Solar Plant which involves solar panels which are mounted on steel structures fixed on the roof of building. The steps involved in this regard are already mentioned above in the written submission dated 08/05/2018. He lastly submits that every item can be dismantled and disassembled without any damage and relocated to another site and as such supply of Roof Top Solar Power Plant docs not constitute immovable property. However on actual verifications of terms of agreement given in the draft contract submitted to us we find that the details in contract are not in convergence with the applicant's submissions in above para. We find the details in contract agreement as under Definitions: 'Project means the [ground/rooftop] mounted solar photovoltaic electric generation power plant of MW
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involves civil work which would be very clear from plethora of judgments of Hon. Supreme Court' and Hon. High Courts which help in understanding the term immovable property. One such decision is of the T.T.G. Industries Ltd. v, CCE, (2004) 4 SCC 751. In this case Court has observed as below:- 18. The core question that still survives for consideration is whether (he processes undertaken by the appellant at Bhilai for the erection of mudguns and drilling machines resulted in the emergence of goods leviable to excise duty or whether it resulted in erection of immovable property and not goods . 21. The appellant has placed considerable reliance on the principles enunciated and the test laid down by this Court in Municipal Corpn. of Greater Bombay (1991 Supp (2) SCC 18] to determine what is immovable property. In that case the facts were that the respondent had taken on lease land over which it had put up, apart from other structures and buildings, six oil tanks for storage of petrol
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ting on earth on their own weight without being fixed with nuts and bolts, they have permanently been erected without being shifted from place to place. Permanency is the test. The chattel whether is movable to another place of use in the same position or liable to be dismantled and re-erected at the latter place? If the answer is yes to tile former it must be a movable property and thereby it must be held that it is not attached to the earth. If the answer is yes to the latter it is attached to the earth. 22. Applying the permanency test laid down in the aforesaid decision, counsel for the appellant contended that having regard to the facts of this case which are not in dispute, it must be held that what emerged as a result of the processes undertaken by the appellant was an immovable property. It cannot be moved from the place where it is erected as it is, and if it becomes necessary to move it, it has first to be dismantled and then re-erected at another place. This factual position
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ling it, and then re-erecting it at some other place. Some of the other decisions which we shall hereafter notice clarify the position further. 24. In Quality Steel Tubes (P) Ltd. v. CCE [(1995) 2 SCC 372 : (1995) 75 ELT 17] the facts were that a tube mill and welding head were erected and installed by the appellant, a manufacturer of steel pipes and tubes, by purchasing certain items of plant and machinery in market and embedding them to earth and installing them to form a part of the tube mill and purchasing certain components from the market and assembling and installing them on the site to form a part of the tube mill which was also covered in the process of welding facility. After noticing several decisions of this Court, the Court observed that the twin tests of exigibilily of an article to duly under the Excise Act are that it must be a goods mentioned either in the Schedule or under Item 68 and must be marketable. The word goods applied to those which can be brought to market f
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erned with the exigibility to duly of mono vertical crystallisers which are used in sugar factories to exhaust molasses of sugar. The material on record described the functions and manufacturing process. A mono vertical ctystalliser is fixed on a solid RCC slab having a load-bearing capacity of about 30 tons per square metre. It is assembled at site in different sections and consists of bottom plates, tanks, coils, drive frames, supports, plates, etc. The aforesaid pails were cleared from the premises of the appellants and the mono vertical crystalliser was assembled and erected at site. The process involved welding and gas-cutting. The mono vertical crystal User is a lull structure, rather like a tower with a platform at its summit. This Court noticed I hat marketability was a decisive test for dutyability. It meant that the goods were saleable or suitable for sale, that is to say. They should be capable of being sold to consumers in the market, as it is. without anything more. The Co
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turbo alternator on a concrete base specially constructed on the land cannot be treated as a common base and, therefore, it follows that installation or erection of turbo alternator on the platform constructed on the land would be immovable property, as such it cannot be an excisable goods falling within the meaning of Heading 85 02. In reaching this conclusion this Court considered the earlier judgments of this Court in Municipal Corpn. of Greater Bombay (1991 Supp (2) SCC 18]. Quality Steel Tubes 1(1995) 2 SCC 372: (1995) 75 ELT 17] and Mittal Engg. Works (P) Ltd [(1997) 1 SCC 203 (1996) 88 ELT 622] as also the earlier judgment of this Court in Sirpur Paper Mills Ltd v. CCE [(1998) 1 SCC 400: (1998) 97 ELT 3]. This Court observed: (SCC pp. 35-36. para -14) 14. There can be no doubt that if an article is an immovable property, it cannot be termed as excisable goods 'for purposes of the Act. From a combined reading of the definition of 'immovable property' in Section 3 of t
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he earth like a building or a tree. 27. Keeping in view the principles laid down in the judgments noticed above, and having regard to the facts of this case, we have no doubt in our mind that the mudguns and the drilling machines erected at site by the appellant on a specially made concrete platform at a level of 25 feet above the ground on a base plate secured to the concrete platform, brought into existence not excisable goods but immovable property which could not be shifted without first dismantling it and then re-erecting it at another site. We have earlier noticed the processes involved and the manner in which the equipments were assembled and erected. We have also noticed the volume of the machines concerned and their weight. Taking all these facts into consideration and having regard to the nature of structure erected for basing these machines, we are satisfied that the judicial member of CEGAT was right in reaching the conclusion that what ultimately emerged as a result of pro
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d the drilling machines are really a component of the plant and machinery of the steel plant, but we are satisfied that having regard to the manner in which these machines are erected and installed upon concrete structures, they do not answer the description of goods within the meaning of the term in the Excise Act. Thus, it can be seen that the Hon. Supreme Court while holding the machines as immovable property took into account facts such that the machines could not be shifted without first dismantling it and then re-erecting it at another site. It was also sought to distinguish as to how a concrete base meant just to prevent wobbling of the machine would not place the machine in the category of 'immovable property' as something attached to the earth. We would also look at the decision of the Hon. Supreme Court in the case of Commissioner of Central Excise, Ahmedabad v. Solid and Correct Engineering Works [(2010) 5 SCC 122]. The facts in this case were thus – 3. M/s Solid and
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hasers of such plants. It is common ground that Solidmec advertises its products and undertakes contracts for supplying, erection, commissioning and after-sale services relating thereto. It is also admitted that all the five concerns referred to above are closely held by Shri Hasmukhbhai, his brothers and the members of their families. 5. An inspection of the factories of the respondents by a team of officers from the Central Excise. Preventing Wing, Headquarters, Ahmedabad, led to the issue of a notice dated 30-11-1999 to the four manufacturing units as well as to Solidmec calling upon them to show cause why the amounts mentioned in the said notice be not recovered from them towards Central excise duty. The notice accused the four manufacturing units of having wrongly declared and classified parts and components being manufactured by them as complete plants/systems, even when they were merely parts and components and not machines or plants functional by themselves. The erroneous class
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antly. the end product, namely, asphalt drum/hot mix plants became exigible to Central excise duty, which duty Solidmec had successfully avoided. The notice also proposed to levy penalties upon all the five concerns under appropriate provisions of the Central Excise Act. The Hon. Court has very elaborately dealt with the issue and it would be useful to go through the observations – 22. Section 3 of the Transfer of Property Act, 1882 does not spell out an exhaustive definition of the expression immovable property . It simply provides that unless there is something repugnant in the subject or context. immovable properly under the Transfer of Property Act, 1882 does not include standing timber, growing crops or grass, Section 3(26) of the General Clauses Act. 1897 similarly, does not provide an exhaustive definition of the said expression. It reads: 3. (26) 'immovable properly' shall include land, benefits to arise out of land, and things attached to the earth, or permanently fast
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enjoyment of that to which it is attached. 25. It is evident from the above that the expression attached to the earth has three distinct dimensions, viz. (a) rooted in the earth as in the case of trees and shrubs (b) imbedded in the earth as in the case of walls or buildings or (c) attached lo what is imbedded for the permanent beneficial enjoyment of that to which it is attached. Attachment of the plant in question with the help of nuts and bolts to a foundation not more than 1= feet deep intended to provide stability to the working of the plant and prevent vibration/wobble free operation does not qualify for being described as attached to the earth under any one of the three clauses extracted above. That is because attachment of the plant to the foundation is not comparable or synonymous to trees and shrubs rooted in earth. It is also not synonymous to imbedding in earth of the plant as in the case of walls and buildings, for the obvious reason that a building imbedded in the earth i
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ed in the earth so as to become immovable property is decided on the same principles as those which determine what constitutes an annexation to the land in English law. The English law has evolved the twin tests of degree or mode of annexation and the object of annexation 27. In Wake V. Halt (1883) 8 App Cas 195 Lord Blackburn speaking for the Court of Appeal observed: The degree and nature of annexation is an important element for consideration: for where a chattel is so annexed that it cannot be removed without great damage to the land, it affords a strong ground for thinking that it was intended to be annexed in perpetuity to the land. 28. The English law attaches greater importance to the object of annexation which is determined by the circumstances of each case. One of the important considerations is founded on the interest in the land wherein the person who causes the annexation possesses articles that may be removed without structural damage and even articles merely resting on t
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it is built. 30. The courts in this country have applied the test whether the annexation is with the object of permanent beneficial enjoyment of the land or building Machinery for metal-shaping and electro-plating which was attached by bolls to special concrete bases and could not be easily removed, was not treated to be a part of structure or the soil beneath it. as the attachment was not for more beneficial enjoyment of either the soil or concrete. Attachment in order to qualify the expression attached to the earth, must be for the beneficial attachment of that to which it is attached. Doors, windows and shutters of a house are attached to the house, which is imbedded in the earth. They are attached to the house which is imbedded in the earth for the beneficial enjoyment of the house. They have no separate existence from the house Articles attached that do nor form part of the house such as window blinds, and sashes, and ornamental articles such as glasses and tapestry fixed by tena
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erved that the expression attached to the earth has three distinct dimensions – (a) rooted in the earth as in the case of trees and shrubs (b) imbedded in the earth as in the case of walls or buildings or (c) attached to what is imbedded for the permanent beneficial enjoyment of that to which is attached It has been categorically observed that the attachment of the plant to the foundation at which it rests does not fall in the third category attached to what is imbedded for the permanent beneficial enjoyment of that to which it is attached], for the reason that an attachment to fall in the third category it must be for permanent beneficial enjoyment of that to which the plant is attached. The Hon. Court even went on to distinguish and record with approval earlier decisions on the issue of 'immovable property'. We may have a look at the same, too. 33. In Sirpur Paper Mills Ltd. (1998) 1 SCC -400] this Court was dealing with a near similar situation as in the present case. The qu
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y and also fur sec win Thai will not make the water pump an item of immovable property. Some of the components of the water pump may even be assembled on site. That too will not make any difference to the principle. The lest is whether the paper-making machine can be sold m the market The Tribunal has found as a fact that it can be sold, in view of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the Company. Just because a plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovable property 38. Reliance was placed by Mr. Bagaria upon the decision of this Court in Quality Steel Tubes (P) Ltd. v. CCE [(1995) 2 SCC 372 (1995) 75 ELT 17] and Mittal Engg. Works (P) Ltd. v. CCE [(1997) 1 SCC 203 : (1996) 88 ELT 622]. In Quality Steel Tubes (P) Ltd. case [(1995) 2 SCC 372 (1995) 75 ELT 17] this Court was examining whether -the tube mill and welding
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273]. the facts and circumstances of each case shall have to be examined for determining not only the factum of fastening/attachment to the earth but also the intention behind the same. 40. In Mittal Engg. Works (P) Ltd. case [(1997) 1 SCC 203 : (1996) 88 ELT 622] this Court was examining whether the mono vertical crystallisers erected and attached by a foundation to the earth at the site of the sugar factory could be treated as goods within the meaning of the Central Excise Act, 1944. This Court on facts noted that mono vertical crystallisers are fixed on a solid RCC slab having a load bearing capacity of about 30 tonnes per square metre and are assembled at site with bottom plates, tanks, coils, drive frames, supports, plates, distance places, cutters, cutter supports, tank ribs, distance plate angles, water tanks, coil extension pipes, loose bend angles, coil supports, railing stands, intermediate platforms, drive frame railings and flats, oil trough, worm wheels, shafts, housing,
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n these appeals as we are not dealing with the case of a machine like mono vertical crystallisers which is permanently embedded in the structure of a sugar factory as was the position in Mittal Engg. Works (P) Ltd. case [(1997) 1 SCC 203 : (1996) 88 ELT 622]. The plants with which we are dealing are entirely over ground and are not assimilated in any structure. They are simply fixed to the foundation with the help of nuts and bolts in order to provide stability from vibrations during the operation. 42. So also in T.T.G. Industries Ltd. v. CCE [(2004) 4 SCC 751: (2004) 167 ELT 501], the machinery was erected at the site by the assessee on a specially made concrete platform at a level of 25 ft height. Considering the weight and volume of the machine and the processes involved in its erection and installation, this Court held that the same was immovable property which could not be shifted without dismantling the same. 43. It is noteworthy that in none of the cases relied upon by the asses
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which there is no assimilation of the machine with the structure permanently, would stand on a different footing. 44. In the instant case all that has been said by the assessee is that the machine is fixed by nuts and bolts to a foundation not because (he intention was to permanently attach it to the earth but because a foundation was necessary to provide a wobble free operation to the machine. An attachment of this kind without the necessary intent of making the same permanent cannot, in our opinion, constitute permanent fixing, embedding or attachment in the sense that would make the machine a part and parcel of the earth permanently. In that view of the matter we see no difficulty in holding that the plants in question were not immovable property so as to be immune from the levy of excise duty. Our answer to Question 1 is accordingly in the affirmative. Thus, from the judgments referred above we find clearly that the intent of the person at the time of erecting and operationalizing
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