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TMI Blog1999 (6) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... stock namely, axles, wheels, wheelsets, hoops and hubs, frames, break gears, hooks, couplings, etc. and claimed exemption from payment of duty under Notification No. 281/86-C.E., dated 24-4-1986. This notification provided exemption to all excisable goods manufactured in a workshop and intended to be used for repair and maintenance of machinery installed in the factory of the manufacturer. The Asstt. Collector denied the benefit of the notification, holding that as per the scheme of Central Excise Tariff Act, 'Railway and Tramway Locomotive & Rolling stock' have been classified under Chapter 86; that in other words, these goods were not considered to be of the class of machinery; that further these goods cannot be held to be installed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anical contrivance generate power or evoke, modify, apply or direct industrial forces with the object in each case of effecting so definite and specific result and the diesel engine is machinery." He contended that these definitions were not appreciated by the Adjudicating Authority. He relied upon the decision of the Bombay High Court in N.K. Kapur, Asstt. Collector v. Kirloskar Cummins Ltd. [1985 (21) E.L.T. 392 (Bom.)] in which Item No. 72 in Section 16 of the Customs Tariff was extracted which runs as under :- "Machinery namely, such of the following articles as are not otherwise specified :- (a) prime movers, boilers, locomotive engines and tenders for the same, portable engine (including power driven road rollers, fire engines and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated transport equipments have been separately classified under Section XVII of the Tariff, the parts thereof continue to fall under Section XVI as parts of machinery and mechanical appliances and consequently the fact that the Tariff carves out a special section for machineries for the purpose of transport, does not detract that the same can still fall under the expression 'machinery'. The learned Sr. Counsel also mentioned that without trucks and locomotives it is not commercially expedient to manufacture the products in the appellants' factory. Reliance was placed on the decision in the case of Kudremukh Iron Ore Co. Ltd. v. Commissioner of Customs, Bangalore, [1997 (93) E.L.T. 468 (T)] in which the Tribunal held that trucks and drills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of business. Reliance was also placed on the decision of the Supreme Court in the case of C.I.T. v. Mir Mohammad Ali, [1964 (53) ITR 165] wherein it was held that the expression installed did not necessarily means fixed in position but was also used in the sense of `induct' or 'introduce' or 'placing an apparatus in position for service or use.' Similar views were expressed by the Bombay High Court in the case of C.I.T. v. Saraspur Mills Ltd., [1959 (36) ITR 580]. Finally he submitted that even if it is held that installation means affixation, in the present case the trucks within the works on which the rolling stock moves is affixed to the earth and the items in question would be said to be used for the purpose of repair and maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition that (i) excisable goods are manufactured in a workshop within a factory, (ii) goods are intended for use in the said factory or in any other factory of the same manufacturer, (iii) goods are intended for use for repairs or maintenance of machinery installed therein and (iv) Chapter X procedure is followed if goods are used in a factory different from the factory of production. We find that the availability of the benefit of this notification has already been considered by the Tribunal in the case of appellants themselves in Appeal No. E/3745/89-B1 arising out of Order-in-Appeal No. 91/Pat./89, dated 12-6-1989. It has been mentioned by the appellants in memorandum of appeal that the said appeal was in respect of rejection of L6 lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the special definition of the expression "plant" in sub-section (5) of the Section 10 of the Act and by that definition vehicle, books, scientific apparatus and surgical equipment purchased for the purpose of the business, profession or vocation were expressly included within the definition. In view of these facts, the Bombay High Court held that "in the absence of very strong indication to the contrary in sub-section (2)(iv) of Section 10 we will not be justified in holding that notwithstanding the definition which is specially devised for sub-section (2), the expression 'plant' will not included vehicle, books, scientific apparatus and surgical equipment, some of which by their very nature are incapable of being fixed in position at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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