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TMI Blog2001 (8) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to Section 11A(1). He has imposed a like sum as penalty under Section 173Q besides penalty of Rs. 50,000/- on Shri B.S. Raman, Director of the Gas Filtration Engineering. Besides a penalty of Rs. 25,000/- has been imposed on P.J. Muralidharn, Director of Gas Filtration Engineering. Hence, all of them have filed their appeals. The main issue that arises for consideration is as to whether the appellants have brought into existence movable and excisable items for the purpose of dutiability. Their contention is that they manufacture demisters and candle filters which are about 70 metres in length and they are affixed on the chimneys. The chimney which is in working condition has to be shut down and made to cool. Thereafter, the old demiste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on large number of judgments and made several contentions which have been recorded in the order. They contend that the Commissioner has not given full thought to all their submissions and has passed a cryptic order which is not in detail and examination of facts. The findings recorded is not sustainable and requires to be set aside. They further plead that Commissioner has based his findings on Tribunal judgments rendered in the case of Festo Controls (P) Ltd. [1994 (72) E.L.T. 919 (T)]; Sonomo Aromatics (P) Ltd. [1995 (78) E.L.T. 285 (Tribunal) = 1995 (56) ECR 54 (T)] and Indian Reprographics (P) Ltd. [1995 (75) E.L.T. 112 (T)]. In all these cases the brand name was affixed on the goods, while in their case, no such affixing was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 226 (Tribunal) = 1998 (29) RLT49-CEGAT] (3) Vimal Printery & Co. v. CCE, Vadodara [1999 (110) E.L.T. 980 (Tribunal) = 1999 (31) RLT - 22-CEGAT] (4) Winsome Drill v. CCE, Indore [1999 (32) RLT 340 - CEGAT] (5) CCE, Chennai v. Turnbull Control System (I) Ltd. [2001 (127) E.L.T. 472 (Tribunal) = 2001 (42) RLT 216-CEGAT] (6) Texind Corporation Pvt. Ltd. v. CCE, Mumbai [2001 (130) E.L.T. 622 (Tribunal) = 2001 (42) RLT 572-CEGAT]. 4. Heard ld. Consultant Shri Namasivayam and Shri Parthasarathy Advocate for the appellants. They rely on the judgments already noted supra and contend that the activity carried out by them did not bring into existence goods. Segments cannot be treated as final items as the final item namely demisters a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are not entitled to the benefit of Notification. 6. The Consultant further contends that there were large number of Tribunal judgments holding that these are all immovable properties. Therefore, larger period was not invokable. They had no intention to evade duty and hence Commissioner's imposing like sum as penalty under Rule 173Q is not sustainable. Also, the Directors are not directly involved in the matter. They have not evaded duty intentionally and hence they cannot be imposed with penalties under Rule 209A. In this regard they have already referred to the judgments noted supra. 7. We have considered the submissions made by both the sides. We notice that a Constitutional bench of 5-Member Judge of the Hon'ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the chimney and not at the time when segments are removed from their factory. He has considered segments to be the final product and held them to be marketable. We are constrained to observe that the ld. Commissioner is now required to apply the test laid down by the Apex Court in CCE v. Mans Structurals as well as in the case of Triveni Engineering & Industry Ltd. (supra). The ld. Consultant Shri Namasivayam referred to the Tribunal Judgment in the case of Mohan Breweries and Distilleries (supra) and contended that the Tribunal has already given relief holding the steel tanks as not movable property and goods. We are of the considered opinion that the order being cryptic and has not analysed the basic facts pertaining to emergence o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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