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M/s BHEL, Hyderabad Versus Commissioner of Customs And Central Excise, Bhopal

2015 (10) TMI 2264 - CESTAT NEW DELHI

Denial of exemption claim - manufacture of capital goods (generating sets) at site for manufacturing of finished goods - whether the appellant is entitled to benefit of notification No. 67/95 ibid or not - Held that:- 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. - As the issue is no longer res integra in the light of decision of the Hon'ble Apex Court in the case of Triveni Engineering & Indus. Ltd.(2000 .....

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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 received one purchase order from Bhopal unit of BHEL for supply the item namely, Automatic Storage Retrieval System (ASRS). Some items for bring into exis .....

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r Central Excise Tariff Heading 84.26 as capital goods. Therefore, the appellant is liable to pay duty thereon. Consequently, the impugned proceedings were initiated. A show cause notice was issued on 27.10.2004 for the period 1999-2000 and 2000-2001 by invoking extended period of limitation. The show cause notice was adjudicated converting into the impugned demands. Aggrieved from the said order, the appellant is before us. 3. Learned Counsel for the appellant contested the issue on two grounds .....

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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 adjudicatin .....

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its here itself. 7. Heard the parties. Considered the submissions. 8. As the learned Counsel for the appellant has given up the issue of movability of the impugned good, therefore, we are not going to decide that issue. 9. Now we come to the issue whether the appellant is entitled to benefit of notification No. 67/95 ibid or not. 10. The contention of the learned AR is that as such issue has not been examined by the adjudicating authority, therefore matter be remanded. We are not in agreement wi .....

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viz. paints. It appears from the relevant findings of the authorities below 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 factor .....

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imposed on them under Rule 198 is concerned, and we vacate that penalty also." Therefore, we reject the argument advanced by the learned AR and are dealing with the appeal on its merits on the issue, i.e. "whether the appellant is entitled for benefit of exemption notification No. 67/95 ibid or not". For better appreciation, the relevant provisions of Notification No. 67/95 is reproduced herein as under: ""In exercise of the powers conferred......the Central Government.. .....

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ch is reproduced as under: "Capital goods is defined in Rule 57AA(a) as ''all goods falling under chapter 82, chapter 84, chapter 85 and chapter 90 .... of the First Schedule to the Central Excise Tariff Act, 1985 .... used in the factory of the manufacturer of the final products." 12. We also observe that 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 be .....

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d at site by the appellants. Once the department has come to know about the assembly and erection of turbine generating sets by the appellants, it cannot be alleged by them that facts of such assembly and erection was not known to them and merely because the classification and price list were not filed, the allegation of suppression cannot be levelled against the appellants, It was held by the Tribunal in Kanam Foam Industries case (Supra) that as the department was fully aware of the facts when .....

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the generating sets assembled and erected at site of the customers of the appellants has been used within the factory of production. There is no requirement in the notification that Capital goods has to be used by the same manufacturer in his factory. We, therefore, allow the benefit of Notification No. 67/95-C.E, subject to the verification that turbine generating set was of output exceeding 75KVA. With these observations, the appeal filed by the appellants is allowed. Penalty imposed in the i .....

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