9911796707
TMI Blog2011 (2) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... atankar, Advocate, for appellant Shri S.S. Katiyar, SDR, For Respondent Per : M.V. Ravindran This appeal is directed against the order-in-appeal No. PKA/172/Belapur/2002 dated 28.08.2003. 2. The relevant facts that arise for consideration are that the appellant herein had manufactured and cleared excisable goods i.e. EOT cranes falling under Chapter 84 of CETA, 1985. The appellant paid appropriate central excise duty on the value of the EOT cranes. During scrutiny of the records of the appellant, conducted by CERA it was found that the appellant has not included the value of the magnets which were imported and cleared along with EOT cranes. Therefore, the range Superintendent issued two show-cause notices dated 4.5.88 and 27.11.89 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case records and issue involved therein. I have also gone through the appeal memorandum and cross objection filed by the respondent. The issue to be decided in this case is whether the magnet was attached to the EOT crane in the factory premises before clearance in CKD condition and no other aspect is presently to be considered because the Commissioner of Central Excise (Appeals) has already given earlier clear cut directives and the said OIA was acceptable to both the contending parties as no appeal has been filed against said order. The show-cause-cum Demand notice states that the respondents had imported and received the magnet and had taken Modvat Credit in their R.G.23 A Pt II Register. It is thus obvious that the magnets were receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld submit that magnets which were supplied along with EOT cranes were on the request of their clients. He would also submit that on the spot verification done by the Range Supdt. of Central Excise and the report submitted to the adjudicating authority indicates that the cranes were designed for handling heavy iron billets without magnets as well as with magnets as per the requirement of the assessee's customers. He would submit that the learned Commissioner (Appeals) has erred in not considering the factual position. 5. The learned SDR on the other hand would strongly defend the order of the Commissioner (Appeals). It is his submission that the reports submitted by the Range Supdt. could have been erroneous, only for the reason that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomers along with the reply. It was also submitted by the appellant before the lower authorities, that for working of the cranes, magnets are not necessary and the crane can be used without magnet. 7. As against such detailed submissions, the adjudicating authority in the denovo proceedings caused verification of the assessee's claim. The findings of the adjudicating authority in this case are very vital which are reproduced as under:- "The issue before me is whether the Central Excise duty is payable on lifting magnet along with other parts of the crane which were bought out items and cleared subsequent to clearance of EOT crane. Commissioner (Appeals) in his order have stated that it needs to be seen as to whether the said magnets are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort, findings of the learned Commissioner (Appeals) (has already reproduced in para 3 above) seems to be presumptions. Today also the learned SDR could not point out any contrary evidence from the record, on which Revenue relies upon to allege that the magnet is an essential part of the EOT crane. From the findings of the learned Commissioner (Appeals), we notice that learned Commissioner (Appeals) has presumed that the magnets were opened and tested in the factory premises. To come to such conclusion it seems that there is no evidence. In view of this factual position and in the foregoing, we are of the considered view that impugned order is not correct and is liable to be set aside and we do so. 9. The impugned order is set aside and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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