2015 (1) TMI 586 - AT - Central Excise

Excisability of diesel generating sets - Imposition of penalty - Held that - that D.G. Sets are huge and are installed in a separate building, spread over large area. The same are not portable D.G. sets which can come to market for being bought and sold. - Decision of Western India Machinery Company (2001 (1) TMI 579 - CEGAT, KOLKATA) followed - cannot be held to be marketable and excisable. Extended period of limitation - Held that - Duty of demand is also barred by limitation. As per the statement of Authorised Representative dated 19.10.2002, the jurisdictional Central Excise Authorities were informed about the intended fabrication of the D.G. Sets at the premises in the year 1989 itself. Even the Tribunal s decision in the case of Triveni Engg. (2000 (8) TMI 86 - SUPREME COURT OF INDIA), which held against the assessee on merits, the benefit of limitation was given by observing that there cannot be any reason for suppression inasmuch as in terms of the Board s Circular dated 6.11.86, which was withdrawn subsequently on 11.10.90, no duty was to be discharged on the combination of engine and alternators assembled. As such, we find no suppression can be attributed to the assessee so as to uphold the longer period of limitation. We have also seen the photographs produced before us which establish that D.G. Sets are used as D.G. sets spread over in a separate building. - Decided in favour of assessee.

Summary

Issues:
1. Allegation of manufacturing diesel generating sets and duty payment.
2. Applicability of excise duty on fabricated D.G. sets.
3. Interpretation of whether the D.G. sets are excisable goods.
4. Consideration of limitation period for duty demand.

Analysis:
1. The appellant was alleged to have manufactured two diesel generating sets and was issued a show cause notice for duty payment. The notice proposed a demand of approximately &8377; 76 Lakhs along with a penalty of &8377; 15 Lakhs. The Commissioner confirmed the demand and penalty, leading to the present appeal by the appellant.

2. The appellant contended that the huge D.G. sets, attached to earth, were incapable of being brought and sold, thus not constituting excisable goods. The appellant procured various parts from different manufacturers, assembled them, and erected the D.G. sets under supervision. The Tribunal's decision in a similar case was cited, where attachment to a concrete platform was deemed non-marketable and non-excisable.

3. The Hon'ble Supreme Court's decision in the case of Sirpur Paper Mills Ltd. was referenced by the respondent to argue that fixing machines for wobble-free functioning does not classify them as attached to earth. Various tribunal decisions were also cited, but the Tribunal found the facts similar to the case where the Supreme Court upheld the non-excisability of D.G. sets attached to concrete platforms.

4. Despite ruling in favor of the appellant on merits, the Tribunal also considered the limitation period for duty demand. The appellant informed the Central Excise Authorities about the fabrication in 1989, and the Tribunal noted that no suppression could be attributed to the appellant to uphold a longer limitation period. The Tribunal observed that the D.G. sets were not portable and were used in a separate building, supporting the non-levy of duty.

5. Consequently, the Tribunal set aside the impugned order, allowing the appeal on both merits and limitation, providing consequential relief to the appellant. The judgment highlighted the non-excisability of the D.G. sets due to their attachment to earth and the absence of suppression for a longer limitation period for duty demand.