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TMI Blog2010 (1) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ltd. case set aside earlier by court and matter remanded. Impugned order set aside and matter destroyed to be heard together. - 53 of 2007 - - - Dated:- 27-1-2010 - V.C. Daga and K.K. Tated, JJ. Shri P.S. Jately, for the Appellant. S/Shri V. Sridharan with Prakash Shah i/b. PDS Legal, for the Respondent. [Judgment per : V.C. Daga, J.]. - The Facts : This appeal at the instance of the Revenue is directed against the order dated 12th April, 2007 [2007 (219) E.L.T. 714 (Tri. - Mumbai)] passed by the Customs, Excise Service Tax Appellate Tribunal, West Zonal Bench, Mumbai ("CESTAT" for short), wherein the Tribunal has taken a view contrary to the view taken in the case of Shiv Vani Oil Gas Exploration Services Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the present appellant was engaged in the oil and gas exploration services as well as also undertaking manufacturing activity. According to him, the definition of capital goods given in paragraph 9.12 of Foreign Trade Policy 2004-2009, capital goods includes, plant, machine, machinery equipment or accessories required for manufacture. Secondly, engines in question are either machinery or plant or equipment. He placed into service the judgments of Adjudicating Officer to contend that the engine is a machine. According to him, as per the judgment of the Supreme Court in the case of Commissioner of Income Tax v. Taj Mahal Hotel - (1971) 82 ITR 44 and Scientific Engineering House Pvt. Ltd. v. Commissioner of Income Tax - AIR 1986 SC 338, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the respondent-Revenue tried to support the view taken by the Tribunal contending that, the view taken by the Tribunal is in consonance with the judgment of the Apex Court in the case of Khurana Exports (supra). That is how he tried to support the impugned order. According to him, the Apex Court judgment in the case of Mir Mohd. Ali (supra) or in the case of Vikram Cements (supra) does not deal with the subject goods. He tried to distinguish the said judgments. Consideration 6. Having heard both the parties, from the impugned order, it is clear that earlier, the judgment of the Tribunal in the case of Wartsila India Ltd. v. Commissioner of Customs, Mumbai - 2005 (190) E.L.T. 100 (Tri. - Mumbai), was relied upon by the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence in that behalf. 8. According to Mr. Jately the Apex Court judgment in the case of Mohd. Ali (supra) does not deal with the subject goods. He tried to distinguish the same. In his submission each of import is required to be considered on its own merits. Since, we are remanding matter to the Tribunal for consideration afresh, we do not propose to dwell on the merits of the issue any further. We think it fit to leave the said question for the consideration of the Tribunal on its own merits since we are remitting this matter to the Tribunal for consideration afresh. 9. In the aforesaid view of the matter, the impugned order is quashed and set aside and the matter is remanded back to the Tribunal for consideration afresh. The appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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