9911796707
TMI Blog2000 (7) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... sse fired steam boiler; that the erection contract was given to sub-contractor of the applicant; that the department alleged that the boiler erected at site was goods; that the applicant was the manufacturer and since it was goods, the department demanded Rs. 76,81,542.00 as duty and imposed equal amount of statutory penalty. 3. Ld.Counsel submits that the boiler was not goods , looking to the size and its erection. He submits that the boiler was embedded to the earth and, therefore was not goods for the purpose of levy and collection of duty. He submits that even if the boiler is considered as goods, it was using bagasse (agricultural waste) for producing heat energy. He submits that the CBEC clarified that the boiler can be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR 68 cases. He submits further that even if all the submissions are not acceptable and the duty becomes payable on generator, M/s. Shree Ambica Sugars Limited shall become immediately eligible to take Modvat credit and, therefore, the entire exercise is revenue neutral. He submits that therefore from whichever angle the position is looked at and examined, the duty was not payable in terms of the submissions and if the duty was at all payable it was revenue neutral. He, therefore, prays that the stay petition may be allowed. 5. Opposing the request for waiver of pre-deposit of duty and penalty, Shri R.D. Negi, ld. SDR submits that the boiler in question is goods inasmuch as it was fitted to the earth with nuts bolts that it has been fit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been considered as device and since in the instant case the bagasse itself is agricultural waste is used for firing the boiler, therefore prima facie it appears that it is covered by Notf. No. 5/98. Since the boiler was manufactured in the factory of M/s. Shree Ambica Sugars Limited and was used in the factory of M/s. Shree Ambica Sugars Limited, prima facie it appears to fall under Notf. No. 67/95. We also agree with the contention of the ld. Counsel that in case duty is payable on the boiler, M/s. Shree Abmica Sugars Limited shall immediately become eligible for taking Modvat credit of duty, hence the entire exercise appears to be revenue neutral. Looking to the circumstances of the case, we find that the applicant has been able to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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