TMI Blog2010 (8) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... e seeking to stay the order dated 8th September, 2009 passed by the Commissioner, Delhi. By the impugned order, the demand for duty to the tune of Rs. 1,71,40,806/- has been confirmed against the applicants with interest thereon and equal amount of penalty, besides personal penalty of Rs. 4,00,000/- against Shri Ashish Bhutani, Director of the Applicants Company. 3. The applicants are having their factory at Okhla Industrial Area, New Delhi, and they are engaged in the manufacture of different models of Electronic Weighbridges, Mobile Weighbridges, Electronic Weighing Machines and other similar items. They imported certain items, namely, Girders of specific size, Ground Plates, CI Plates, Joints, Platform as per their design and model number from their vendors and also manufactured other parts like Digital Weight Indicator, Junction-Box, Component of Electronic Jumbo Display, Opto Isolater, Converter, Belt Weigher and Weighbridge in their factory itself. Having learnt that the applicants had cleared all the items which would constitute a weighbridge of a particular model in an unassembled/disassembled form and cleared the same without payment of duty during the period from April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yderabad, reported in 1998 (97) E.L.T. 3 (S.C.), and the Board Circular relied upon by the applicants as well as various findings arrived at by the Commissioner in the impugned order, submitted that, the product merely having been supplied in disassembled form and ultimately the weighbridge is fit to the ground that itself would not make the product an immovable property. Considering the distinguished facts which have been brought on record in the impugned order, according to the DR, the decision delivered by the Tribunal earlier in the matters relating to the applicants would not bar taking a different view in the present case. 5. The learned advocate for the applicants has also raised the point regarding bar of limitation in the sense that there is no sufficient material to justify invocation of extended period of limitation as the period involved is from April, 2003 to March, 2008, whereas the show cause notice was issued only on 3-6-2008. He has also drawn our attention to the quotations in relation to the RCC Platform for the Electronic Weighbridge and in particular to the effect that the civil work was required to be arranged by the purchaser of the weighbridge as also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assembled and erected by the appellant at its factory site was immovable property as something attached to earth like a building or a tree. The Tribunal has pointed out that it was for the operational efficiency of the machine that it was attached to earth. If the appellant wanted to sell the paper making machine it could always remove it from its base and sell it. 5. Apart from this finding of fact made by the Tribunal, the point advanced on behalf of the appellant, that whatever is embedded in earth must be treated as immovable property is basically not sound. For example, a factory owner or a house holder may purchase a water pump and fix it on a cement base for operational efficiency and also for security. That will not make the water pump an item of immovable property. Some of the components of water pump may even be assembled on site. That too will not make any difference to the principle. The test is whether the paper making machine can be sold in the market. The Tribunal has found as a fact that it can be sold. In view of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact remains that what is cleared by the notice from the factory is Electronic Weigh Bridge/Weigh Bridge. It is also a fact that without load Cells and other bought out items including Steel Structures, Weigh Bridge the product Electronic Weigh Bridge cannot become operational." It has also been held that : "It was evident that prices quoted by the party were in respect of full Weighbridge/machine to be supplied and were shop tested by them before supply." The above finding has been arrived at on analysis of the invoices of the products supplied by the applicants to the customers and is evident from the copies thereof placed before us in the paper book. Merely because civil work was required to be arranged by the purchaser in relation to the concrete platform, that itself would not make the product an immovable property nor it could justify the claim of the applicants that the product does not amount to an excisable one. Rather the involvement of the customer in the civil work of the concrete platform would lend support to the finding of the authority that the goods supplied by the applicants were merely attached to the earth with the nuts and bolts would not transform t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depreciation amortization, and increase/decrease of stock, and each of these items refers to various schedules like N, P, O, P, Q, R, E S. However, the annexures to this statement do not disclose these schedules. Needless to say that the statement of profit loss account has been filed in a truncated form. Apart from the fact that merely on the basis of profit loss account for the previous year, the financial condition of the firm cannot be ascertained, even otherwise, while placing on record the relevant documents, the applicants have chosen to file a truncated document. The reasons for the same are not known. 13. As regards the contention about the non-justification for invocation of extended period of limitation, the impugned order has dealt with this aspect in para 64 which reads as under : "64. Further, Shri Ashish Bhutani, Director of the Company has stated in his statement dated 3-5-2008 that they had been availing SSI exemption after filing the necessary declaration with the Central Excise Department and submitted copies of such declaration dated 18-3-06 and 18-9-06. A par the declaration, the party declared that being registered SSI unit, they were availing excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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