9911796707
TMI Blog2000 (4) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... ignite Corporation Ltd. (NLC) by the appellants out of partially components manufactured in their own factory in Bihar and partially out of bought out items, is excisable or not? 2. The impugned order has confirmed duty of Rs. 89,51,359 and penalty of Rs. 40 lakhs by holding that that the goods are excisable falling under 84.28 of the CET, 1985 because these are not immovable property totally embedded in the earth. 3. Heard Shri R. Nambirajan and Shri J. Sankararaman, learned Counsels for the appellants and Shri S. Kannan, learned DR for the Revenue. 4. Learned Counsel Shri Nambirajan took us through the purchase orders, replies to the show cause notice, as well as the statement of their Senior Manager which is relied upon by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 8-12-1997 i.e. almost 4 to 5 years later. He further submits that as early as 6-6-1991 in response to the letter of the Department of that date the appellants had filed their letter dated 30-8-1991 giving all the details of the project to the Supdt. concerned which also referred to the discussions of their Consultant held with the Supdt. on 16-7-1991 wherein the entire matter was explained to the Supdt. Learned Counsel submits that during the course of the discussions, copies of all the invoice of bought out items as well as their own manufactured goods, copy of the contract as well as diagram had been promised to be furnished and the same were furnished with this letter. In addition, detailed diagram was also furnished and it was explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he face of this evidence. 6. The learned Counsel also submits that the rate of duty applied in the order impugned is on tariff rates whereas the effective rate for goods falling under 84.28 were covered by Notification No. 51/93, dated 28-2-1993 (Sl. No. 12) and stood at 10% adv. Therefore, presuming without admitting that the goods are not excisable the demand is to be reduced to 50% straightaway. The order impugned has not therefore applied the correct effective rate of duty under law. 7. The learned Counsels also submit that they had claimed relief of Modvat on the components/bought out items which had been cleared on payment of duty or purchased elsewhere on payment of duty, if the end-product was held to be excisable. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the foundation which cannot be unbolted, hence the goods are not immovable property. In this connection he refers to Section XVI of Chapter 84.28 at page of the explanatory note to HSN wherein under clause B conveyors are classified as continuous action machines which are used for moving goods in horizontal direction some times over very long distances. He submits that these movements can be actuated over by pushing elements i.e. bucket, or pan type conveyors or screw conveyors or it can be on the basis of motor driven rollers. The present conveyors system consists of such motor driven rollers clearly classifiable under 84.28 in the HSN. He also refers to the decision in the case of Sirpur Mills as in 1998 (97) E.L.T. 3 (S.C.). 9. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty amount has to take into consideration the effective rate of duty prescribed by the Central Excise Notification, unless it is shown with reasons as to why said notification is not applicable to the facts of this case. There is no such discussion. (c) Appellants had all along given detailed submissions on the question of limitation. These include points of discussion their Consultant had with the Supdt. in 1991 as well as detailed nature of the letter dated 30-8-1991 submitted by them to the Supdt. of Central Excise. Therein they cited the trade notice as well as the case law to support their claim that the system erected at site is an immovable property. However, we are disappointed to find as to why there is no whisper of discus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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