Judgment :- R. Sudhakar, J. 1. This Civil Miscellaneous Appeal filed by the assessee as against the final order passed by the Tribunal was admitted by this Court on the following substantial questions of law: "1. Whether on the facts and circumstances of the case, the Tribunal was right in holding that "signages" which came into being on erection at the petrol stations are movable goods liable to excise, merely because some samples were fully manufactured in the premises of the appellant? 2. Whether on the facts and circumstances of the case, the Tribunal was right in upholding the order of the Commissioner treating the signages as movable property contrary to the clarification issued by the Board?" 2. The brief facts of the case are as follows: On 23.1.2000, based on intelligence, the Officers of the Department visited the premises of the appellant and examined the records. The Officers found that the appellant/assessee had been manufacturing and supplying signages (illuminated signs) under a contract with M/s.Indian Oil corporation Ltd.(in short IOC) and had erected them at the retail outlets of IOC located at various places in the South. Alleging that the appellant had undertaken manufacture of excisable goods without following central excise formalities, the Officers seized signages and parts available at the premises for further action. After taking evidence in the form of statements of various persons associated with production, inspection and purchase of signages, two show cause notices were issued to the appellant as well as to the Managing Director of the company proposing to recover central excise duty and for imposing penalty. The show cause notice was issued in the following terms: " 14. Now, therefore M/s. Virgo Industries (Engineers) Pvt. Ltd, Chennai - 600 058, are hereby required show cause to the Commissioner of Central Excise, Chennai II Commissionerate, MHU Complex, 692, Anna Salai, Nandanam, Chennai - 600 035 within 30 days from the date of receipt of this notice as to why:- a) the duty of excise payable on the goods cleared from their factory for the period from 1999-2000 and 20002-2003 (Upto 12/2002) over and above the exemption limits amounting to Rs.98,33,780/- (Rupees Ninety eight lakhs thirty three thousand seven hundred and eighty only) as shown in the Annexure-A and Abstract at Annexure C should not be demanded from them under the proviso to Section 11A(1) of the Central Excise Act 1944. b) A penalty should not be imposed on them under Section 11AC of Central Excise Act 1944 and Rule 173Q(1) of Central Excise Rules, 1944 and Rule 25 of Central Excise Rules, 2002. c) The interest on the duty amount should not be charged under section 11AB of Central Excise Act 1944. d) The seized goods valued Rs.3,29,925/- as shown in the Annexure to seizure mahazar dated 25.9.2000 and later released provisionally should not be confiscated under Rule 173Q(1) Central Excise Rules 1944/Rule 25 of Central Excise Rules, 2002. 14.1 Shri. Mathew Kuncheriah, Managing Director of M/s.Virgo Industries (Engineers) Pvt. Ltd., Chennai - 600 058, is required to show cause to the Commissioner of central Excise, Chennai II Commissionerate, Chennai -35, as to why a penalty should not be imposed on him under Rule 209A of Central Excise Rules, 1944/Rule 26 of Central Excise Rules, 2002." 3. The case was adjudicated and the plea of the appellant was rejected. On adjudication, the Adjudicating Authority has passed the following order: "1. I hold that Signages manufactured/assembled by M/s.Virgo Industries (Engineers ) Pvt. Ltd., No.43 Second Main Road, Ambattur Industrial Estate, Ambattur, Chennai - 58 are excisable and chargeable to duty. The Signages are classifiable under C S H 9405.90 and chargeable to appropriate duty of excise 2. I confirm and demand Central Excise duty of Rs.98,20,679/- (Rs.Ninty eight lakhs twenty thousand six hundred and seventy nine only) and Rs.84374/- (Eighty four thousand three hundred and seventy four only) from M/s.Virgo Industries (Engineers) Pvt. Ltd., Ambattur, Chennai - 58 being the duty leviable on Signages manufactured and cleared as detailed in the Annexure to this Order in respect of Show Cause Notices No.30/03 dated 10.3.03. and 6/04 dated 11.2.04 under Section 11A(2) of the Central Excise Act, 1944. 3. I confiscate excisable goods valued Rs.3,29,925/- under Rule 173Q(2) of Central Excise Rules, 1944/Rule 25 of Central Excise Rules, 2002. M/s.Virgo Industries (Engineers) Pvt. Ltd., Ambattur, Chennai - 58 is however given the option to redeem the confiscated goods on payment of redemption fine of Rs.1,00,000/- (Rupees One lakh only). This option is to be exercised within 3 months from the date of receipt of this order. 4. M/s.Virgo Industries (Engineers) Pvt. Ltd., Ambattur, Chennai - 58 is however given the option to redeem the confiscated goods on payment of redemption fine of Rs.1,00,000/- (Rupees One lakh only). This option is to be exercised within 3 months from the date of receipt of this order. 4. I impose a penalty of Rs.99,05,053/- (Rupees Ninety nine lakhs five thousand and fifty three only) under Section 11 AC Central Excise Act, 1944 on M/s.Virgo Industries (Engineers) Pvt. Ltd., No.43 Second Main Road, Ambattur Industrial Estate, Ambattur, Chennai - 58. 5. I impose a penalty of Rs.10,00,000/- (Rupees Ten lakhs only) on Shri Mathew Kuncheria, Managing Director of M/s.Virgo Industries (Engineers) Pvt. Ltd., No.43 Second Main Road, Ambattur Industrial Estate, Ambattur, Chennai - 58. Under Rule 209A of erstwhile rules/Rule 26 of Central Excise Rules, 2002. 6. I also impose penalty of Rs.7,00,000/- (Rupees Seven lakhs only) under Rule 173Q on M/s.Virgo Industries (Engineers) Pvt Ltd., Ambattur, Chennai - 58. 7. I also demand interest under Section 11AB of Central Excise Act, 1944 on the duty determined paras 2 above." 4. Aggrieved by the said order, the appellant preferred an appeal before the Tribunal. The Tribunal, on the substantial issue dismissed the appeal. However, the Tribunal set aside the penalty imposed under Rule 173Q on the company and reduced the penalty imposed on the Managing Director of the company to Rs.2.00 lakhs. 5. Not satisfied with the order of the Tribunal, the appellant/assessee is before us. 6. Heard learned counsel appearing for the appellant/assessee and the learned counsel appearing for the respondent and perused the materials placed before this Court. 7. We find that the first question of law admitted by this Court appears to be more in the nature of fact. The main thrust of the case of the appellant is that the appellant fabricated only the sign poles of iron and steel required for the signages and other items, such as, fibre glass reinforced plastic sheets, the vinyl sheets cut into signs, the electrical panels concealed within the signboard etc. got manufactured by third parties and that the signages proper had been erected at the various IOC bunks. It is the specific case of the appellant that at the premises of the appellant only sign poles were fabricated and the signages were erected using the components received at the various sites from their manufacturers. got manufactured by third parties and that the signages proper had been erected at the various IOC bunks. It is the specific case of the appellant that at the premises of the appellant only sign poles were fabricated and the signages were erected using the components received at the various sites from their manufacturers. It is also the specific case of the appellant that signages came into existence only at the site and the same was immovable on erection as it was fixed to earth on concrete foundation and hence no excise duty was payable by the appellant on the activity of fabrication and erection of signages at the IOC premises. Relying on the Board's Circular No.58/1/02-CX dated 15.1.2002, the appellant submitted that no duty was payable on signages even if the same were cleared from the factory in CKD or unassembled form as the final product was immovable and not goods. In support of their contention, the assessee relied on the following decisions: 1. Gold stone Engineering Ltd. Vs.Union of India – 2005 (181) ELT 11 (AP) 2. Commissioner of Central Excise, Chennai Vs. India Pistons Ltd. - 1998 (104) ELT 494 (Tribunal) 3. Collector of Central Excise, Bhubaneswar Vs. Radiant Electronics Ltd. - 1996 (85) ELT 102 (Tribunal) 4. Triveni Engineering & Indus. Ltd. Vs. Commissioner of Central Excise – 2000 (120) ELT 273 (SC) 5. Hyderabad Race Club, Malakpet, Hyderabad Vs. Collector of Central Excise – 1986 (23) ELT 274 (Tribunal) 8. Learned Standing Counsel appearing for the Department justified the adjudication order by relying on the decision in the case of Cheran Spinners Ltd. V. Commissioner of Central Excise, Coimbatore – 2008 (231) ELT 315 (Tri. - Chennai) and Commissioner of Central Excise, Chennai Vs. Aluplex India Ltd. - 2008 (228) ELT 97 (Tri. Chennai). 9. The issue that arose before the Tribunal was whether the signages erected at various petrol bunks of IOC were exigible to duty. The other factual issue that was considered by the Tribunal was whether the appellant had cleared complete signages in unassembled form to the sites or whether sign poles alone were cleared by the assessee from its factory and the remaining parts of signages got manufactured by it on job work basis were received at the respective locations directly from the contractors of Virgo for eventual erection. 10. 10. The Tribunal, after going through the composition of signages, which includes steel structure along with electrical fittings and assembly of FRP cladding, Lexon poly carbonite rolls for display and the vinyl stickers for logo display etc. came to the conclusion that the Revenue had proved, on the basis of records, that complete signages were assembled at the virgo premises and each of them is inspected by RITES, a government inspecting agency appointed by IOC. After RITES certified that the signages were manufactured as per the specifications of IOC, they dismantled and packed for convenience of transportation to various petrol bunks of IOC for erection. 11. These signages, according to the Adjudicating Authority and the Tribunal, fall under CSH 9405.90. To accept the adjudication order with regard to the assembly of the entire signage at the premises of the appellant, the Tribunal placed reliance on the statement of Shri.V.R.Prasad, Deputy Chief Inspecting Engineer of RITES dated 06.11.2000 and the statement of Shri.Prabhakar Ayer, Senior Engineering Manager of IOC dated 20.12.2000. The specific statement of Mr.Prasad is that signages emerged after complete assembly of all parts at the virgo factory and after inspection of the complete signages, he embossed the seal RS+02 on the steel structure. The Senior Engineering Manager of IOC had stated that all the signages supplied by Virgo were actually manufactured and assembled at Virgo factory only. The emphatic statement as recorded by the Tribunal is that there was 'no chance of saying' that only parts of signages were taken to IOC outlets and assembled at site. He also states that assembled signages were dismantled for convenience of transportation to the respective sites where they were reassembled. It is also on record that as per mahazar dated 23.8.2000 drawn at the premises of Virgo, 10 numbers of main signages and 13 numbers of facility signages in fully assembled condition along with lighting poles, FRP components and poly carbonate boards were seized. This showed that the signages were assembled at Virgo's premises before dismantling and clearing them to the respective sites. The Tribunal also recorded the memo of delivery to show that complete signages were assembled. One other document relied on by the Commissioner and approved by the Tribunal is erection report dated 13.7.2000, which shows that what was unloaded was the full set of signage. The Tribunal also recorded the memo of delivery to show that complete signages were assembled. One other document relied on by the Commissioner and approved by the Tribunal is erection report dated 13.7.2000, which shows that what was unloaded was the full set of signage. Yet another document relied on is Form XX Sl.No.0728758 dated 22.7.2000, which says that 3 signages were transported from Chennai to IOC Vijayawada. This document is relied on for the purpose of showing that complete signages has been transported. The further reliance on the letter dated 27.2.1999 addressed to RITES by the Managing Director of Virgo shows that 330 signages were to be fabricated, inspected, transported and erected in an year's time. The various other documents that have been set out in the order of the Tribunal regarding the nature of transaction clearly established that full sets of signages were made ready for inspection at the premises of the appellant and inspected by the persons from IOC and RITES. 12. The Adjudicating Authority as well as the Tribunal relied upon the communication between IOC and the assessee to come to the conclusion that heavy quantity of signages were to be erected at different locations and signages of value of Rs.one crore were in stock at Ambattur and Virgonagar factories. 13. To buttress the argument that erection was not done at the site, reliance was placed on the work order placed on M/s.Venkateswara Fibre Glass Industries dated 25.11.1999 and 25.1.2000, wherein it was stated that free delivery may be given at out works at Chennai - 58. All these documents were relied on by the Commissioner and the Tribunal to come to the conclusion that signages were sent in sets for erection at various sites, supported by erection report dated 13.7.2000. 14. In paragraph 9 of the order, the Tribunal rejected the plea raised by the appellant that sign poles alone were manufactured at Virgo premises and the signages came into existence when the same were erected using the components received directly at the site from their sub-contractors. For better clarity, we extract below the relevant portion of the order of the Tribunal: "9. For better clarity, we extract below the relevant portion of the order of the Tribunal: "9. Though the appellants have vehemently contested the above finding of the Revenue and endeavoured to canvass the claim that sign poles alone were manufactured at Virgo premises and the signages came into existence when the same were erected using also the components received directly at the site from their sub-contractors, the appellants have not succeeded in their effort in view of the documentary evidence pointing to a different factual situation as found by the Commissioner." 15. The statement of the Senior Engineer of RITES and IOC clearly justified the stand of the Department that they had manufactured the goods at the factory. By distinguishing the decisions in the case of Hyderabad Race Club, Malakpet, Hyderabad Vs. Collector of Central Excise - 1986 (23) ELT 274 (Tribunal), Triveni Engineering & Indus. Ltd. Vs. Commissioner of Central Excise - 2000 (120) ELT 273 (SC) and Commissioner of Central Excise, Chennai Vs. India Pistons Ltd. - 1998 (104) ELT 494 (Tribunal) relied on by the appellant, the plea of the appellant that signages came into existence only after erection and they were immovable and not exigible was repelled by the Tribunal holding as follows: "We find that in the instant case the complete signage is movable and is installed by fixing it on a concrete foundation. These can be detached and shifted to another location without damaging them. The signage is fixed to earth like the paper machines considered in Sirpur Paper Mills Ltd. case. Signage is complete before fixing on the concrete platform. The facts of the judicial authorities relied on by the appellants are therefore different and their ratio inapplicable to the facts of the instant case. 16. In fine, after analysing the various decisions cited by the appellant, the Tribunal held as follows: "10. It transpires from the ratio of the above case law that an item which is fixed in the earth can continue to be movable and excisable if the same is capable of being shifted from one place to another without having to dismantle the same into the constituent components. We have seen the photographs produced by Virgo showing different stages of assembly and erection of signages. We have seen the photographs produced by Virgo showing different stages of assembly and erection of signages. Undisputedly signages are capable of being assembled at the premises of the appellants and then transferred to the site to its erection after dismantling the same. The signages do not emerge as an immovable property on assembly or erection. They have base plates of steel with provision to fit them on bolts of the concrete foundation. These are not like a turbo alternator, parts of which are separately aligned and fixed on a concrete base to bring into existence the turbo alternator and could not be removed as turbo alternator as such. In the circumstances we hold that the signages are excisable goods." 17. To further buttress the finding that erection is of no consequence, it has been held in paragraph 11 of the order of the Tribunal that no separate charges are realized for erection and commissioning as seen from the contract and the accounts of Virgo. The Tribunal confirmed the findings of the Commissioner that the goods are found ready for erection at the factory and allowed deduction of transport cost alone. As a result of this finding, the Tribunal confirmed the impugned order demanding duty on the consideration realized by Virgo for manufacture and erection of signages. The Tribunal has also confirmed the demand of duty invoking larger period as well as penalty imposed under Section 11AC of the Central Excise Act. However, the Tribunal held the since penalty was imposed under Section 11AC, penalty under Section 173Q was uncalled for. 18. In this background, the present appeal has been canvassed by the appellant/assessee by relying on the decision in the case of crafts Interiors Pvt. Ltd. V. Commissioner of C.Ex., Bangalore reported in 2006 (203) ELT 529 (SC), wherein, the core issue that arose for consideration before the Supreme Court was whether storage cabinets, kitchen counters, running counters, large reception/conference tables etc. are furniture and excisable goods. In that case, the Supreme Court dealt with what would constitute furniture and held as follows: "15. Thus, a perusal of the definitions given in various dictionaries shows that ordinarily 'furniture' refers to movable items such as desks, tables, chairs, required for use or ornamentation in a house or office. Thus, ordinarily furniture is not something immovable or something which is fixed in a position which can be removed only by cannibalizing. Thus, a perusal of the definitions given in various dictionaries shows that ordinarily 'furniture' refers to movable items such as desks, tables, chairs, required for use or ornamentation in a house or office. Thus, ordinarily furniture is not something immovable or something which is fixed in a position which can be removed only by cannibalizing. We agree with learned Counsel for the appellants that the latter are fixtures and not furniture. 16. Several of the items in question in the present case e.g. kitchen overhead and below counters, storage units are, in our opinion, clearly not 'furniture' and hence not excisable under Sub-heading 9403 as furniture. 17. In view of the above discussion, we are of the opinion that these appeals have to be allowed. We hold that items which are ordinarily immovable or which ordinarily cannot be removed without cannibalizing e.g. storage units, running counters, overhead unit, rear and side unit, wall unit, pantry unit, kitchen unit and other items which are ordinarily immovable or cannot be removed without cannibalizing are not furniture. However, items like tables, desks, chairs etc. are furniture and hence excisable." 19. The facts in the present case are different. Here, the findings of the Commissioner as well as the Tribunal are that the signages are capable of movable and are installed by fixing it on a concrete foundation and can be detached and shifted to another location without damaging them. Therefore, the above-said decision of the Supreme Court stands distinguished in the facts of the present case. Even otherwise, we find that the finding of fact by the Commissioner as well as by the Tribunal cannot be an issue for consideration in appeal. We find that the first question of law is a question of fact and on the second question of law whether the Board's Circular is binding, reliance was placed on the Board's Circular No.58/1/2002-CX dated 15.1.2002 by the counsel for the appellant, wherein it is stated as follows: "(vii) When the final product is considered as immovable and hence not excisable goods, the same product in CKD or unassembled form will also not be dutiable as a whole by applying Rule 2(a) of the Rules of Interpretation of the Central Excise Tariff. However, components, inputs and parts which are specified excisable products will remain dutiable as such identifiable goods at the time of their clearance from the factory or warehouse." 20. However, components, inputs and parts which are specified excisable products will remain dutiable as such identifiable goods at the time of their clearance from the factory or warehouse." 20. This general proposition is given with regard to immovable final products. In the present case, both the Authorities have come to the conclusion that the final product is not immovable. Therefore the circular is of no avail to the appellant. 21. In view of the foregoing discussion, we uphold the order and the question of law is answered against the assessee and in favour of the Department. Accordingly, the order of the Tribunal stands confirmed and this Civil Miscellaneous Appeal stands dismissed. No costs. Consequently, M.P.No.1 of 2009 is also dismissed.