TMI Blog2001 (1) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... nce appellants M/s. Belliss India Ltd are liable to pay duty of Rs. 9,53,829/- under Rule 9(2) of the C.E. Rules, 1944 read with Section 11A of the C.E. Act, 1944. He ordered confiscation of the goods with an option to redeem the same on payment of fine of Rs. 20,00,000/- by appellants M/s. Cheyyar Co-op Sugar Mills Ltd. as the goods were in the possession of appellants M/s. Cheyyar Co-op Sugar Mills Ltd., who are also imposed a penalty of Rs. 10,00,000/-. There is also penalty of Rs. 10,00,000/- on the other appellants. However, in the impugned order, the Commissioner accepted the plea of the appellants for allowing Modvat credit under Rule 57A and directed the jurisdictional Assistant Commissioner to examine their claim in terms of the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agitated before the Hon ble Apex Court with a specific plea that such assembly on a immovable property would not bring into existence new goods for the purpose of excisability. The Supreme Court examined the issue in the light of larger number of their earlier judgments and also examined their judgment in the case of Narne Tuleman (supra) as well as the judgment in the case of Mittal Engineering Works - 1996 (88) E.L.T. 622 (S.C.), Collector v. Woodcraft - reported in 1995 (77) E.L.T. 23(S.C.), Municipal Corporation of Bombay v. IOC Ltd. reported in 1991 Suppl. (2) SCC 18, Quality Steel Tubes (P) Ltd. v. CCE as reported in 1995 (75) E.L.T. 17 (S.C.) and Sirpur Paper Mills v. CCE as reported in 1998 (97) E.L.T. 3 (S.C.), State of Maharashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is similar in the present case. The Supreme Court after examining the nature of the assembly and in the light of various judgments held that such assembly did not bring into existence any new goods although there may be process of manufacture. The relevant findings arrived at by the Supreme Court pertinent for the purpose of this case can be drawn from the paras 19 to 23 of their judgment which are reproduced herein below : 19. It appears that the aforementioned two cases - Mittal Engineering Works (P) Ltd. and Quality Steel Tubes (P) Ltd. (supra), were not referred to in Sirpur Paper Mills Ltd. s case. Further, in the instant case it is a common ground that a turbo alternator comes into existence only when a steam turbine and alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er alternator - but then it would not remain turbo alternator, therefore, the test is incorrectly applied. Though, there is no finding that without fixing to the platform such turbo alternator would not be functional, it is obvious that when without fixing, it does not come into being, it can hardly be functional. 21. It will be useful to refer to the Explanatory Note issued by the Harmonized System of Nomenclature (HSN) to which Mr. Sridharan invited out attention. We also note that HSN received the approval of this Court in CCE v. Woodcraft [1995 (77) E.L.T. 23 (S.C.) = 1995 (3) SCC 454], which explained the scope of Heading 85.02 as under : ........Generating sets consisting of the generator and its prime mover which are mounted (or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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