TMI Blog1996 (2) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 4.5 MW capacity in their factory for captive consumption weighing about 70 metric tonnes. He has pleaded that this generating set was manufactured with various bought out items as also some fabrication work done in the appellants unit. He has pleaded that the appellants have necessarily to fix the generating set at site and had to provide necessary foundation for the purpose of proper working of the generating set as otherwise vibration etc. would damage the set. He has pleaded that in this view of the matter the generating set should not be considered as goods being affixed on the floor. Alternatively he has pleaded no duty is demandable in respect of the generating set with effect from 21-1-1994 from which the sets were exempted fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistence physically on 21-1-1994 and in fact the appellants had done test run after that date before 1-3-1994 and therefore the set can be taken to have been ready and the same can be taken to have been used captively with effect from that date. He has pleaded that the appellants had not informed the authorities about the coming into existence of this generating set and came on record for excise purposes only much later. He has pleaded that the appellants are therefore liable to pay duty and they are also liable for penalty. 4. We have considered the pleas made by both the sides. The admitted position is that the set had come into existence on 21-1-1994. This set, as pleaded by the learned Consultant, was physically assembled out of the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of the defects which were pointed out and has clearly held that these defects were only minor in nature and the set should be considered as operational on 21-1-1994. We also find that the appellants did the operation of the set on that date and after that date before 1st March, 1994. Further we find that on a query from the Bench the learned Consultant has not been able to say the legal provision which prevented the appellants from taking the set into use as soon as the assemblage was completed. Taking into consideration the facts and circumstances of the case therefore we hold that prima facie the learned lower authority s order is maintainable in law. The learned Consultant was asked as to the financial position of the appellants. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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