TMI Blog2002 (1) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), I impose an equal amount of Rs. 77,60,800/- (Rupees seventy-seven lakhs sixty thousand eight hundred) as mandatory penalty under Section 11AC. I also order the assessee to pay forthwith interest amounting to Rs. 15,52,160/- (Rupees fifteen lakhs fifty-two thousand one hundred sixty) under Section 11AB, being the interest on duty confirmed above . 2. The facts of the case briefly stated are that the appellants are engaged in design, engineering, manufacture, supply and erection of machinery, equipments and parts thereof including the equipments called travelling water screens and vertical screens wash pumps. The appellants during the period from 1990 to 1999 received orders from Madhya Pradesh Electricity Board, Subhas Projects and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the goods manufactured by them and removed from the factory and therefore no further duty was payable by them; that excise duty is to be levied only on goods manufactured and cleared. 4. It was contended by the ld. Consultant that the allegation that the entire system was manufactured in the factory is not factually correct; that value of bought out items sent directly to the site cannot be included for the purpose of computing the assessable value in respect of goods manufactured and cleared from the factory; that the equipment comes into existence only after assembly at site for the first time as a part of immovable property and no duty can be levied at that stage as no manufactured marketable excisable goods had emerged after erecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsultant submitted that Revenue has not brought out any evidence to show that the appellant had intention to evade payment of duty. 8. The ld. Consultant submits that as the appellants had bona fide belief that no duty was payable on the equipment erected at the point of installation and that there was no intention to evade payment of duty there was no question of imposition of any penalty. In regard to penalty under Section 11AC. This section was introduced on 28-9-96 and the ld. Consultant submits that the period in the instant case is from 1-11-90 to 12-1-99 and the show cause notice was issued on 25-10-2000, a part of the demand is beyond five years which can in no case be enforced and other demands are also hit by limitation as indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the matter has not been examined in the light of this decision of the Apex Court. We also note that this decision of the Apex Court was followed by the Tribunal in the case of Vardhaman Spinning Mills - 2001 (132) E.L.T. 663 (Tribunal) and in a number of other cases. 13. We also note that the ld. Consultant had brought to our notice a number of invoices, gate passes and challans which showed that the appellant had been sending the goods direct to the site of erection of the equipment. These documents were not available at the time of decision before the Commissioner or they were not taken into consideration by the Commissioner while deciding the issue. Since these documents are important for coming to the conclusion we consider it a fit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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