TMI Blog2013 (12) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... their customers - the appellants have not supplied the plants but supplied only 4 items manufactured by them and they have discharged proper excise duty - the appellant is not liable to pay any duty – Thus, confiscation of plant and imposition of duty is not sustainable – Decided in favour of Assessee. - E/1392,1393,1394/2011-Mum - Final Order Nos. A/302-304/2013-WZB/C-II(EB) - Dated:- 10-4-2013 - Ashok Jindal And P K Jain, JJ. For the Appellants: Shri R Nambirajan, Adv. Ms Anjali Hiravat, Adv. For the Respondent: Shri Ahibaran, Additional Commissioner (AR) PER : Ashok Jindal The main appellant M/s Dalal Mckenna Private Ltd., has challenged the impugned order confirming the duty demand of Rs. 1,89,85,430/- for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant submits that the appellants are manufacturing the goods which are classifiable under Tariff Heading 84 of the CETA, 1985 and cleared the same on payment of appropriate excise duty. Thereafter the Nitrogen/Oxygen Plants were fabricated at the customer's site. Therefore, bought out times which were directly supplied at customer site such as suction filter, air compressor, after cooler, moisture separator, cascade cooler, activated carbon/alumina filter, molecular batter, insulation etc. these bought out items were not asked by customers from the appellant to supply. Moreover, the appellants were having the purchase orders for mainly the items manufactured by the appellant. He also submitted that during the impugned period there were 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t company namely Mr. Nitin Sanghi who is the Proprietor of M/s. Sanghi Oxygen (Bombay) Pvt Ltd. Therefore the value of the bought out items are includible in the assessable value as all these items are used in installation of the plant and plant is dutiable item as it becomes a new commodity into existence. He relied upon the Larger Bench decision of the Tribunal in the case of Mahindra Mahindra Ltd. vs. C.C.E. Aurangabad reported in 2005 (190) ELT 301 (Tri. LB) to submit that fabrication amounts to manufacture whether the same also relied on the decision of the Hon'ble Supreme Court in the case of Narne Tulaman Manufacturers Pvt. Ltd. Vs. Collector of C.E. reported in 1988(38) ELT 566(SC) and in the case of Sirpur Paper Mills Ltd. vs. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir site against proper invoice. The plants were also erected at the site by assembling the above 4 items and bought out times by assembling by the third party. The appellant has never supplied plant in toto. Therefore, the value of bought out items are not includible in the assessable value as same are neither spare parts or accessories to the items manufacture by the appellant. The decision of Narne Tulaman Manufacturers Pvt. Ltd. (supra) is not applicable to the facts of this case as in that case the manufactured goods and bought out items were cleared from the factory and the final product assembled from such duty paid items. In that situation, the Hon'ble Supreme Court held weigh bridge are dutiable. The decision of Mahindra Mahindra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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