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TMI Blog1999 (10) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of Rs. 1000/- imposed under Rule 52A, 173Q and 226 of the CE Rules in respect of diesel generating sets assembled and installed in June 91. Proceedings were initiated by issue of show cause notice dated 13-3-1992 invoking the longer period of limitation 3. Appeal No. E/5109/92 arises from order in original dated 1-9-1992 confirming duty demand of Rs. 2,61,519 under Rule 9(2) read with Section 11A of the CE Act, 1944 besides imposing penalty of Rs. 1,000/- under Rule 52A, 173Q and 226 of the CE Rules, 1944 in respect of captive use of generating sets installed on 14-3-1991. Proceedings were initiated by issue of show cause notice dated 9-1-1992. 4. We have heard Shri M. Rajendran, learned Counsel in Appeal No. E/5085 while none appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods as they are embedded to the earth and in view of the Board's circular, the longer period of limitation is not invocable as there was no suppression on the part of the appellants. He further submits that the Tribunal after due consideration rejected the plea that the item was not immovable property. However, the plea of the assessee is that demands were barred by time and the larger period cannot be invoked in this case in view of the Board's Circular on this aspect. He further submits that this view was expressed in the case of Triveni Engg Works v. CCE as reported in 1996 (88) E.L.T. 238 (Tribunal) wherein the Tribunal held that generating sets are not immovable property. The Tribunal also held that demands of duty are hit by limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the case of Triveni Engg. would apply to the facts of this case. 8. On consideration of the submission made we are inclined to accept the learned DR's plea that the issue pertaining to excisability of the item in question stands settled by the noted judgments. From the judgments we notice that on the issue pertaining to time bar there is a contradictory finding in the case of Lakshmi Saraswathi Textiles wherein the bench did not consider the various judgments of the Hon'ble Apex Court on the aspect pertaining to time bar. The bench expressed the view that the plea of bona fide cannot be raised and the larger period is invocable while in the case of Triveni Engg. the bench besides going into aspect pertaining to excisability of the it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circulars referred to above regarding the dutiability of the generator sets assembled at site and so the ratio of the Supreme Court judgment supra will apply to the facts of this case. Further, there was also a decision dated 28-11-1990 in favour of the appellants that the generator sets were not goods and hence not excisable by the Commissioner Central Excise (Appeals), Bangalore. It is also seen from the copy of the Price List submitted at Allahabad that the name of the industrial user customer and the purchase order number are also indicated therein. In these circumstances, therefore allegation of wilful suppression of facts by the appellants is not sustainable and the duty demand in both cases beyond six months under Section 11A of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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