TMI Blog2001 (2) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... heading 8431.00 attracting higher rate of duty. The notice proposed invocation of longer period of limitation and imposition of personal penalty upon the appellants. 2. Upon adjudication, the Commissioner of Central Excise, Calcutta confirmed the demand of duty as proposed in the show cause notice and also imposed the personal penalty of an equivalent amount under the provisions of Section 11AC of Central Excise Act, 1944. 3. Interest @24% was also confirmed on the amount outstanding under the provisions of Section 11AB of the Act. The said Order of the Commissioner is impugned before us. 4. Shri S.K. Bagaria, learned Advocate, appearing for the appellants submits that they were placed with a Purchase Order by M/s. Tata Refractories L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner that even if all the parts cleared from the factory may collectively constitute a machine, the classification can only be done as parts. He draws our attention to the earlier decisions of the Tribunal in the case of Vishwa Industrial Co. Pvt. Ltd. v. C.C.Ex., Calcutta-II reported in 1999 (107) E.L.T. 774 and in the case of C. C. Ex. v. B.H.P. Engineers reported in 2000 (119) E.L.T. 599 (Tribunal) = 2000 (40) RLT 791. Attention has also been drawn to other two decisions of the Tribunal in the case of C. C. Ex. v. Conveyor Equipments Pvt. Ltd. reported in 2001 (127) E.L.T. 478 and in the case of Flat Products Equipments(I) Limited v. C. C. Ex. reported in 2000 (115) E.L.T. 629 (Tribunal) = 1999 (35) RLT 993, where in an identical sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the challans and gate passes, it was apparent that the goods were being cleared in CKD condition and this cannot be justifiably made the basis for invoking the longer period of limitation. In any case, Conveyors, by their nature, can never be cleared in a fully assembled condition and they have always to be cleared in CKD condition or SKD condition. In support of his above submission, he placed reliance upon the following decisions :- (i) 2000 (115) E.L.T. 35 (S.C.) - National Radio Electronics Co. Ltd. v. CCE (ii) 1995 (78) E.L.T. 401 (S.C.) - Pushpam Pharmaceuticals Co. v. CCE (iii) 1995 (75) E.L.T. 721 (S.C.) - Cosmic Dye Chemical v. CCE (iv) 1989 (43) E.L.T. 195 (S.C.) - Padmini Products v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineering Project reported in 1995 (78) E.L.T. 544, wherein it was observed that the Conveyor Parts manufactured at the assessee's factory and removed to site of erection cannot be called collection of parts of the conveyor system. As such, he submits that by applying the ratio of the said decision, no fault can be found with the impugned Order. 8. As regards the limitation, Shri Chaturvedi, learned SDR for the Revenue submits that the returns filed by the appellants are still pending assessment and as such, the question of limitation does not arise. 9. In his rejoinder, Shri Bagaria, learned Advocate submits that the facts in the case of Space Age Engineering Project Pvt. Ltd. referred to by the learned SDR, are totally different and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one as parts because there is a specific separate heading for parts. We do not find any merits in the above reasoning of the adjudicating authority. If that be so, as rightly contended by the learned Advocate, the entry under heading 84.28 would become redundant inasmuch as the Conveyors and Material Handling Equipments can never be cleared in a fully manufactured condition and for their very nature, they have to be cleared in SKD or CKD condition. The Tribunal in the case of Vishwa Industries Co. Pvt. Ltd. v. C.C.Ex., Calcutta-II (referred supra) has held that where the Conveyors are cleared in SKD or CKD condition, they have to be assessed as Conveyors falling under sub-heading 84.28 and not as parts under heading 84.31. Similarly, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
