TMI Blog1985 (3) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ents which they purchase from the Associated Bearing Company Ltd. The petitioner does not carry on any manufacturing activities whatsoever on the components purchased by them and they are supplied in the same packed condition in which they are received by the petitioner. Excise duty was payable under Item 68 of the First Schedule of the Central Excises and Salt Act, 1944 by the petitioner. The Central Government being empowered to authorise exemption from duty in special cases by sub-rule (1) of Rule 8 of the Central Excises Rules, 1944 issued notifications from time to time laying down certain conditions which must be satisfied before exemption could be claimed. One of the conditions was that the value of total clearances should not exceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... net profit to the petitioner and required to be considered for computing the clearance value during financial year 1979-80. So far as the next financial year is concerned, the contention of the petitioner was that the cost of the plant and machinery which was installed was less than Rs. 10,00,000 and that way, the condition imposed by the Government while issuing notification for the relevant year was satisfied. The contention of the petitioner was that the petitioner had purchased some machinery in the month of October but that machinery was not installed and, therefore, the cost of the said machinery cannot be taken into consideration while considering whether the value of the machinery was more than Rs. 10 lakhs or not. The Assistant Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Assistant Collector in considering the amount of refund as profit and his action in taking into consideration the value of the machinery which was not installed cannot be justified even on merits looking to the facts of the case as alleged in the petition and looking to the notifications in question. 4. So far as the action of the Assistant Collector in taking into consideration the refund as profit is concerned, the learned Counsel Mr. S.R. Shah appearing for the respondents fairly contended that his action in doing so was not justifiable. Even otherwise also it is obvious that the refund which the petitioner was entitled as a result of the order of the Tribunal cannot with any stretch of imagination be taken as profit to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads, as follows :- "Provided further that an officer not below the rank of an Assistant Collector of Central Excise is satisfied that the sum total of the value of the capital investment made from time to time on plant and machinery installed in the industrial unit in which the said goods, under clearance, are manufactured, is more than rupees ten lakhs". When the petitioner has made a specific allegation in the petition that the machinery was not installed and when the order passed by the Assistant Collector shows that he took into consideration even the value of plant and machinery which was not installed and when he does not even indicate that he was alive to this difference and when even the affidavit in reply does not give any i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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