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TMI Blog1999 (8) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... ification 77/83 dated 1-3-1983, it was less than Rs. 20,00,000. Adjudicating authorities took the value shown in Balance Sheet under head Plant and Machinery as the value for determining the cut off point for eligibility. The value of various items like value of jigs, moulds, dies, inspection gauges, inspection fee, electrical installations, generator, etc. are included in the Balance Sheet. Under Section 211 of the Companies Act, 1956, Balance Sheet of a company is required to be in the Form set out in Part-I of Schedule-VI. According to this Section, fixed assets should be shown by distinguishing as far as possible between expenditure upon goodwill, land, building, etc. The basic record, i.e., the Fixed Assets Register, always shows different assets separately, but for balance sheet these assets are clubbed together under the various headings. The adjudicating authorities should have gone through the fixed assets register in which expenditure on each asset is indicted and worked out the exact amount that has to be excluded from the total figure given in the Balance Sheet. The Chartered Accountant s certificate which indicates amount actually is the value of Plant and Machinery ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sheets and in fact, even refund was sanctioned to them after Asstt. Collector was satisfied that the value of Plant and Machinery does not exceed the cut off limit for exemption. 8. We do not find that these pleas have been adequately considered. In fact, non-consideration of the pleas recording value of Plant and Machinery and value of items which could be excluded was held as one of the reasons even at prima facie stage by the Tribunal for granting unconditional stay. 9. In view of this, we are of the view that matter would have to go back by way of remand. We, therefore, set aside the impugned orders and remand the matter to the adjudicating authority for a de novo decision after considering all the pleas and verifying the assets register to arrive at correct value of Plant and Machinery and pass de novo order after arriving at definite findings in record to pleas that may be taken by the appellants. Appellants would be at liberty to produce such additional evidence before the adjudicating authority as they consider would support their case. Sd/- (Shiben K. Dhar) Member (T) 10. I have given anxious thought to the order proposed by the learned Member (Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexure A) are not to be included in the value of plant and machinery as these consist of micro meters, verniers, calipers, gauges, dial indicators, spring testers etc. which are not plant and machinery installed. Once the value of these items is excluded, then the value of plant and machinery for the period covered in both the appeals would be within the ceiling limit prescribed in the Notification, as seen from Sl. No. 1 of the Chart (Annexure A) and both the demands require to be set aside. 14. In addition to the merits of the claim of the appellants for the benefit of exemption under the Notification, they are also entitled to succeed on time bar. In E/Appeal No. 179/89-B1, the demand has been confirmed for the period from 1-4-1981 to 30-9-1985 while the show cause notice is dated 21-4-1986 (the show cause notice covered the period from 1-10-1980 to 30-9-1985 and the Principal Collector has held that the period prior to 31-3-1981 is beyond even five years and therefore, the demand for the period from 1-10-1980 to 31-3-1981 is time barred even applying the extended period of limitation). The second appeal covers the period 1-10-1985 to 28-2-1986 while the show cause notice has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ANIES ACT, 1956 AUDITED BY STATUTORY AUDITORS AS ON 30TH JUNE OF FINANCIAL YEAR AS PER BALANCE SHEET S. NO. PARTICULARS OF ITEM 30-6-1981 30-6-1982 30-6-1983 30-6-1984 1 Plant and Machinery(Inclusive of freight and insurance etc.) 12.44 16.73 19.11 18.77 2 Small Valve items of instruments, gauges, Dies Patterns and items for Repairs completely written off 0.39 0.59 0.74 1.20 12.83 17.32 19.85 19.97 3 Inspection Checking Instruments 3.35 3.35 3.84 4.37 4 Jigs, Fixtures, Dies, Moulds and Patterns 2.39 2.62 3.82 4.14 5 Generator Set 2.60 2.73 2.73 2.73 6 Electric Installation 0.67 0.67 0.67 0.71 7 Tube Well 0.09 0.09 0.09 0.09 8 Work Benches 0.36 0.36 0.36 0.36 9 Spares for Repairs etc. 0.82 0.85 0.85 0.85 TOTAL SHOWN IN BA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als are required to be remanded for a de novo decision as proposed by the learned Member (Technical), or the appeals are required to be allowed both on merits and limitations, as proposed by learned Member (Judicial). 16. I heard Shri P.S. Bedi, learned Consultant for the appellants, and Shri D.S. Negi, learned SDR. Both the learned Consultant and learned SDR have reiterated their earlier submissions as contained in the order under reference. Shri P.S. Bedi emphasised that Central Board of Excise Customs had issued instructions that certain items like jigs, moulds, etc., would not be taken into account while computing the value; that the appellants were only working under the instructions issued by Board while computing the investment in plant and machinery. He also contended that Additional Collector in the impugned order No. 55/89 dated 30-5-1989 had excluded the value of such items whereas Principal Collector, in the impugned order No. 99/88, dated 18-11-1988 had held otherwise. The learned SDR pointed out that Hon ble Member (Tech.) was of the view that the pleas regarding the items of capital goods to be excluded and included while computing the value of plant and mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and sanctioned by the Department. The Department, accordingly, can not now claim that the appellants had misdeclared the capital investment on plant and machinery with an intent to evade the payment of duty. Both at the time of approval of the classification list and at the time of sanction of the refund claim, the Assistant Collector was required to have gone into the details of declaration made by the appellants regarding capital investment on plant and machinery and whether it was within the limit specified in the notifications. Further the question of invoking the provisions of proviso to Section 11A(1) of the Central Excise Act for issuing show cause notice dated 6-1-1989 for demanding duty for extended period does not arise in view of the facts that already the department had issued a show cause notice on 21-4-1986 on the same ground alleging that the capital investment on plant and machinery had exceeded Rs. 20 lakhs from the financial year 1981-82 itself and as such department was aware of the fact that the appellants had allegedly exceeded the limit of capital investment. The department thus cannot claim in 1989 that they were not aware of these facts and the appellant ..... 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