TMI Blog2012 (6) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... de out a strong case in their favour in view of the provisions of Notification no. 67/95-CE - the pre-deposit of dues are waived and recovery of the same is stayed during the pendency of the appeal - E/1392 to 1394/2011-Mum - S/851-853/12/EB/C-II - Dated:- 14-5-2012 - S S Kang, Sahab Singh, JJ. For Appellant: Shri V Sreedharan, Adv. For Respondent: Shri Y K Agarwal, Additional Commissioner (AR) Per: S S Kang: Heard both sides. 2. The applicant filed this application for waiver of pre-deposit of duty of Rs.1,96,36,714/-, interest and penalty. 3. The brief facts of the case are that applicants are engaged in the manufacture of excisable goods classifiable under chapter 84 of the Central Excise Tariff Act, 1985. The appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court in the case of Triveni Engineering Industries Ltd. vs. Commissioner of Central Excise reported in 2000 (120) ELT 273 (SC). 5. The alternate plea of the applicant is that the capital goods i.e Nitrogen/Oxygen plant came into existence in the factory premises and the same has been further used in the manufacture of excisable goods. Therefore, such capital goods are exempted, in view of the provisions of Notification no. 67/95-CE. This plea is specifically taken by the applicant before the adjudicating authority and the adjudicating authority in the impugned order note this contention however, no finding is given in this regard. In view of the above, the contention of applicant is that the demand is not sustainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods. The revenue relied upon the findings in para 24 which is reproduced below: "24. Applying the above tests to the case at hand, we have no difficulty in holding that the manufacture of the plants in question do not constitute annexation hence cannot be termed as immovable property for the following reasons : (i) The plants in question are not per se immovable property. (ii) Such plants cannot be said to be "attached to the earth" within the meaning of that expression as defined in Section 3 of the Transfer of Property Act. (iii) The fixing of the plants to a foundation is meant only to give stability to the plant and keep its operation vibration free. (iv) The setting up of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court after taking into facts and circumstances of the case as the manufactured goods and bought out items were cleared from the factory and the final product assembled from such duty paid items. In this situation, the hon'ble Supreme Court held weigh bridge are dutiable. In the case of Mahindra Mahindra (supra) the Larger Bench of the Tribunal held that fabrication of Steel Structures like roof frame and sheds amounts to manufacture whether the same are fabricated at customers place. 12. In the present case the Nitrogen/oxygen plants are assembled at the customers place i.e factory of the manufacturer. We find that the Notification no. 67/95-CE dt. 16.03.1995 provides exemption from payment of excise duty in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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