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TMI Blog2001 (7) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... in Application E/Stay-1296/2001 in Appeal E/1377/2001, and penalty of Rs. 62,000/- in Application E/Stay-1297/2001 in Appeal E/1378/2001. 2. We have heard both sides at length. 3. G.B. Gadre and Company, the applicant, was at the relevant time, engaged in the manufacture of ventilation systems and strip lighting systems, made out of aluminium or of steel. These were to be fitted on the roofs of factory sheds to provide ventilation and natural light respectively. The duties have been demanded and penalties imposed on this firm on the finding of the adjudicating authority, confirmed by the Commissioner (Appeals), that the applicant failed to pay the duty, leviable at the rates applicable under Headings 7308.90 and 7610.90 of the Tariff, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and designs required for the fabrication of the items in question. Penalty has been imposed on the ground that it was related to G.B. Gadre and Company and colluded with it in evasion of duty. Counsel contends that the penalty imposed under Rule 173Q is in any case not maintainable since it is not the manufacturer. 7. The departmental representative contends that the goods in question are cut into required size and shape in the applicant s factory and transported unassembled only for the convenience of transportation. Therefore, the classification has been correctly arrived at. He relies upon the finding of the adjudicating authority with regard to limitation and the penalty imposed on Vijaydeep Industries. 8. We find a strong prima fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Application E/Stay-1296/2001, and stay its recovery. 10. The issues on merits are debatable. From the argument that we have heard and looking on the literature that are provided it appears that the ventilation systems come into existence after being fabricated piece by piece upon the roof of the factory sheds, the first, each stage of manufacture being fastened to the existing stage by welding. What was cleared from the factory was the elements of such system, obtained by cutting or shaping, angles, etc. It is therefore not possible for us to say that prima facie what the applicant had cleared constitutes parts of ventilation system and thus identifiable by shape or structure. That identity comes into existence only when various elemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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