TMI Blog2015 (10) TMI 2264X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 16.3.1995. Therefore, the appellants are not required to pay duty on the impugned goods. Consequently, impugned order is set aside. - Decided in favour of assessee. - Excise Appeal No. 2333 of 2006 - FINAL ORDER NO. A/ 52624 /2015-EX(DB) - Dated:- 13-8-2015 - Ashok Jindal, Member (J) And B Ravichandran, Member (T) For the Appellants : Shri B L Narsimhan Shri Vipul Agarwal, Advs. For the Respondent : Shri Ranjan Khanna, DR ORDER Per Ashok Jindal The appellant is in appeal against the impugned order demanding duty of ₹ 43,61,600/- along with interest and imposing equal amount of penalty. 2. The facts of the case are that the appellant is located in Hyderabad which is the unit of BHEL. The appellant r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Engineering Indus. Ltd. vs. CCE [2001 (136) ELT 617 (T)] which has been affirmed by the Hon'ble Apex Court as reported in [2002 (1390 ELT A 310 (SC)] and ISGEC Covema Ltd. vs. CCE [2002 (147) ELT 368 (T)]. He prayed that impugned order be set aside and the appeal be allowed. 5. On the other hand, learned AR submits that as this ARSR can be dismantled and can be moved from one place to another place, therefore, it is the capital good. Therefore, the appellant is liable to pay duty thereon. On the issue of availment of benefit of notification No. 67/95 ibid, he submits that as availment of said notification has not been examined by the adjudicating authority, therefore, the matter be remanded back to adjudicating authority for deno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow that this fact stands accepted by the Revenue. If that be the case, M/s. TPCL were clearly entitled to the benefit of Notification No. 67/95-C.E. in respect of the container-handles inasmuch as the said item was captively consumed by M/s. TPCL and M/s. APCL. It is settled law vide the case law cited by ld. Counsel that, under Notification No. 67/95-C.E., inputs/capital goods could be captively consumed in a given factory by different manufacturers. It is, again, settled law that the benefit of an exemption Notification could be claimed at appellate stage. This is what M/s. TPCL has done in this case. We, therefore, allow the benefit of Notification No. 67/95-C.E. to M/s. TPCL in respect of the container-handles and, accordingly, set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Revenue has not disputed that impugned goods i.e. ASRS is falling under CTH 84.26 which is specified in the definition of capital goods. Therefore, the short issue remains before us is whether the appellant is entitled for exemption under said notification or not. 13. The said issue came up before this Tribunal in the case of Triveni Engineering Indus. Ltd.(supra) wherein this Tribunal has observed as under:- 4. We have considered the submissions of both sides. It is not disputed by the Revenue that issue involved in the first matter which has been decided by the Tribunal was the same regarding excisability of turbine generating sets assembled and erected at site by the appellants. Once the department has come to know about th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Apex Court cited (supra). 14. The issue was again examined by this Tribunal in the case of ISGEC Covema Ltd. vs.' CCE [2002 (147) ELT 368 (T)] wherein this Tribunal has observed as under: 4. It is clear from the aforesaid decisions of the Tribunal as confirmed by the Supreme Court in the Triveni Engg. case that even if the goods are held to be excisable, they would be exempt under Notification No. 67/95 and no duty demand could be raised in respect of the steam boiler in question. 5. As the goods, steam boiler in question is exempt under Notification No. 67/95, we hold that the duty demand raised in the adjudication order is not tenable and the same is required to be set aside. No penalty can survive in the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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