9911796707
TMI Blog1999 (6) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ;Briefly stated the facts are that the appellants manufactured parts of loco, wagon & rolling stock namely, axles, wheels, wheelsets, hoops and hubs, frames, break gears, hooks, couplings, etc. and claimed exemption from payment of duty under Notification No. 281/86-C.E., dated 24-4-1986. This notification provided exemption to all excisable goods manufactured in a workshop and intended to be used for repair and maintenance of machinery installed in the factory of the manufacturer. The Asstt. Collector denied the benefit of the notification, holding that as per the scheme of Central Excise Tariff Act, 'Railway and Tramway Locomotive & Rolling stock' have been classified under Chapter 86; that in other words, these goods were not considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some mechanical contrivance which by themselves or in combination with one or more other mechanical contrivance generate power or evoke, modify, apply or direct industrial forces with the object in each case of effecting so definite and specific result and the diesel engine is machinery." He contended that these definitions were not appreciated by the Adjudicating Authority. He relied upon the decision of the Bombay High Court in N.K. Kapur, Asstt. Collector v. Kirloskar Cummins Ltd. [1985 (21) E.L.T. 392 (Bom.)] in which Item No. 72 in Section 16 of the Customs Tariff was extracted which runs as under :- "Machinery namely, such of the following articles as are not otherwise specified :- (a) prime movers, boilers, locomotive engines and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile passing the impugned order. He also contended that vehicles, aircrafts, vessles and associated transport equipments have been separately classified under Section XVII of the Tariff, the parts thereof continue to fall under Section XVI as parts of machinery and mechanical appliances and consequently the fact that the Tariff carves out a special section for machineries for the purpose of transport, does not detract that the same can still fall under the expression 'machinery'. The learned Sr. Counsel also mentioned that without trucks and locomotives it is not commercially expedient to manufacture the products in the appellants' factory. Reliance was placed on the decision in the case of Kudremukh Iron Ore Co. Ltd. v. Commissioner of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied when the assessee purchases a bus or lorry and puts it on the road in the course of business. Reliance was also placed on the decision of the Supreme Court in the case of C.I.T. v. Mir Mohammad Ali, [1964 (53) ITR 165] wherein it was held that the expression installed did not necessarily means fixed in position but was also used in the sense of `induct' or 'introduce' or 'placing an apparatus in position for service or use.' Similar views were expressed by the Bombay High Court in the case of C.I.T. v. Saraspur Mills Ltd., [1959 (36) ITR 580]. Finally he submitted that even if it is held that installation means affixation, in the present case the trucks within the works on which the rolling stock moves is affixed to the earth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Rules, 1944." 8. The benefit of this notification is available subject to the condition that (i) excisable goods are manufactured in a workshop within a factory, (ii) goods are intended for use in the said factory or in any other factory of the same manufacturer, (iii) goods are intended for use for repairs or maintenance of machinery installed therein and (iv) Chapter X procedure is followed if goods are used in a factory different from the factory of production. We find that the availability of the benefit of this notification has already been considered by the Tribunal in the case of appellants themselves in Appeal No. E/3745/89-B1 arising out of Order-in-Appeal No. 91/Pat./89, dated 12-6-1989. It has been mentioned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. case, supra, the development rebate was allowed in respect of motor cars and cycles in view of the special definition of the expression "plant" in sub-section (5) of the Section 10 of the Act and by that definition vehicle, books, scientific apparatus and surgical equipment purchased for the purpose of the business, profession or vocation were expressly included within the definition. In view of these facts, the Bombay High Court held that "in the absence of very strong indication to the contrary in sub-section (2)(iv) of Section 10 we will not be justified in holding that notwithstanding the definition which is specially devised for sub-section (2), the expression 'plant' will not included vehicle, books, scientific apparatus and surgic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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