TMI Blog1999 (10) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... umaran, learned Advocate, submits that as far as the excisability of the impugned product is concerned, the matter has been decided by the Appellate Tribunal in their own case for the earlier period as reported in 1996 (88) E.L.T. 238. He further submits that the appeal filed by them has been admitted by the Supreme Court. He is, therefore, not presenting his submissions on merits in view of the Tribunal s decision which is in appeal before the Supreme Court. He, however, submitted that show cause notice was issued on 16-7-1996 demanding duty for the period from April, 1993 to March, 1996 and as such, this demand except for six months period is hit by time limit specified in Section 11A(1) of the Central Excises Act. He drew our attention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Capital goods and as their products are classified by the department under the same heading, the benefit of Notification No.67/95 will be available and, therefore, no duty is liable to be paid by them. 3. Countering the arguments, Shri P.K. Jain, learned SDR, submits that last circular on the subject was issued by the Central Board of Excise Customs in 1990 and there was no confusion or there were no contrary view after the said period. In view of these facts, the observations made by the Tribunal in para 16 of the earlier order are not applicable to the facts of this case. As the appellants had neither filed a classification list nor a price list for the impugned goods and there was no communication by them to the Department about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 67/95-C.E. exempts the Capital Goods as defined in rule 57-Q manufactured in a factory and used in the factory of production. We agree with the learned Advocate that benefit of this notification is available as the generating sets assembled and erected at site of the customers of the appellants has been used within the factory of production. There is no requirement in the notification that Capital goods has to be used by the same manufacturer in his factory. We, therefore, allow the benefit of Notification No. 67/95-C.E. subject to the verification that turbine generating set was of output exceeding 75KVA. With these observations, the appeal filed by the appellants is allowed. Penalty imposed in the impugned order is also se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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