TMI Blog2005 (8) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 11A of the Act to confirm duty demand and also to impose like sum as penalty under Section 11AC of the Act. There is a penalty of Rs. 5 lakhs on the Managing Director. It is the contention of the Revenue that for the purpose of manufacture and clearance of the said item namely solar power electric power fencing system, they bring in various items which are also duty paid such as insulator, insulation test tool kit, battery charger and also procured various items from outside stores. They get G1 wire, springs, battery, solar panel and Voltage Stabilizer etc. as bought out items and procured items such as Kiwitha Post, posts and pipes etc. on job work basis and imported certain items such as six channel Controller and Key pad etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants had submitted all the information but no action had been taken. The Commissioner in the impugned order has not referred to these materials but has held that the demands are not barred by time despite the show cause notice issue on 26-12-2003 for the period October 98 to October 2003. 2. Learned counsel submitted that the item is fixed on the walls and separately also on poles and they are not classifiable as electrical machines and apparatus having individual functions under the Heading 8543.90. He refers to explanatory notes of HSN Chapters 2312 and contend that what is included under Heading 8543.40 is only electrical fence energizers and not the item in question. He further submits that in terms of the Apex Court jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment rendered in the case of Srichakra Tyres Ltd. v. CCE reported in [1999 (108) E.L.T. 361] confirmed by Supreme Court as reported in 2002 (142) E.L.T. A279. He also submitted that Modvat credit is also required to be granted to the duty paid inputs in terms of the following judgments. (1) Keltron v. CCE, Cochin [2004 (166) E.L.T. 68] (2) Merinoply Chemicals Ltd. v. CCE, Shillong [2001 (135) E.L.T. 470] (3) Kesha Sales (P) Ltd. v. CCE, Meerut [2001 (131) E.L.T. 59] (4) Lakshmi Card Clothing Mfg. Co. Ltd. v. CCE, Madras [2001 (129) E.L.T. 116] (5) CCE, Bombay v. Bamcee Ltd. [2001 (128) E.L.T. 126] 3. Learned SDR filed detailed comments from the Commissioner and pointed out that appellants are cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers to the Apex Court judgment rendered in the case of Sirpur Paper Mills [1998 (97) E.L.T. 3 (S.C.)] which lays down the proposition that imbedding the machinery in a concrete base to ensure it's wobble free operation does not make the commodity immovable property in the sense a building or a tree is. He points out that poles which are the basis for fixing the wires and fence can be removed and refixed elsewhere. He submitted that larger period can be invoked. 4. On a careful consideration and examining the impugned order, and the record, we are satisfied that the item which has come into existence is an electrical appliances having individual functions. All the items are put together to bring into existence this item, Electric Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was aware of all the demands are partly time-barred as the department was aware of all the details collected by them for 1998 and the show cause notice issued in 2003 makes the demands time-barred is a well considered plea an require to be accepted in the light of the following judgments cited by them. (1) Cosmic Dye Chemical v. CCE, Bombay [1995 (75) E.L.T. 721 (S.C.)] (2) CCE v. Chemphar Drugs Liniments [1989 (40) E.L.T. 276 (S.C.)] (3) Padmini Products v. CCE [1989 (43) E.L.T. 195 (S.C.)] (4) Pushpam Pharmaceuticals Company v. CCE, Bombay [1995 (78) E.L.T. 401 (S.C.)] The penalty of Rs. 5 lakhs on the Managing Director is excess. Hence it is reduced to Rs. 50,000/-. The matter is remanded to Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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