TMI Blog2004 (2) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2). The period involved is from 16-3-95 to Nov. 1998. The larger period was invoked for demanding the duty from 16-3-95 to 9-2-98 for the first demand. 2. The appellants are claiming the concessional rate of duty available under Notification No. 205/88-C.E., dated 25-5-88 as amended by notification 57/95-C.E. The appellants are placing reliance on the order of the Board issued from F.No. 156/9/92-CX. 4, dated 19-5-92 under Section 37B whereunder it has been communicated that clearance of Fluidised Bed Combustion Boiler (FBEB) generally cleared in unassembled or disassembled condition are to be granted benefit of exemption Notification No. 205/88-C.E., dated 25-5-88 (earlier Notification 120/81, dated 15-5-81.) The benefit was to be ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant did not form a complete hydraulic turbines at the time of the clearance. The despatch comprised of several consignments and did not occur in one consignment. The same cannot be considered as clearance of CKD/SKD turbines and hence they are to be classified as parts of hydraulic turbines classifiable in 8410.90 of the Tariff. It is also observed by the adjudicating authority that, prior to 16-3-95, the party was describing the product as "hydraulic turbines component" and then changed their description as "hydraulic turbine of capacity less than 15MW". The change in nomenclature was made to take illegally the benefits of the Notification No. 57/95-C.E., dated 16-3-95 which is the amending notification to Notification No. 205/88-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision reported in 2001 (134) E.L.T. 781 (Tri. - Del.) has concurred that the decision of the Tribunal in the case of Flat Products (supra) and differed with the judgment of the bench in the case of Space Age Engineering Products Pvt. Ltd. v. CCE, Pune reported in 1995 (78) E.L.T. 544 (T). 6. We note that the matter can be decided without going into the controversy of conflicting decisions of the coordinate benches. The dispute does not relate to the classification of the impugned goods. The issue relates to extension of exemption under Notification No. 205/88-C.E. as amended by Notification No. 57/95-C.E., dated 16-3-95 available to turbines for hydroelectric equipment of a capacity not exceeding 15 MW. In other words, unlike several exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15-5-1981 have to be administered. The Commissioner in his order after referring to the said 37B order is holding that, the components/assemblies manufactured and cleared by their party did not form a complete hydraulic turbine either in a knocked down/unassembled or disassembled condition at the time of clearance (emphasis ours). This reading of the instruction is totally misplaced. The fact that the components/sub-assemblies have to be removed in different convoys and not in a single convoy is a practical reality. It is not possible for anyone to remove all components/parts and sub-assemblies together in one single convoy, leave alone in a single transportation. The instructions in the circular also do not provide that at the point of cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd are binding on the authorities functioning under the Board. The instructions very clearly lay down the guidelines that :- (1) Evidence is produced that the goods cleared (emphasis ours) form part of a complete device, and the evidence is also produced for supply of such a device to the buyer and the said goods is designed for the use in the conversion of municipal waste for producing energy. (Section 37B Order No. 4/92, dated 19-5-92) 7.1 Similar mandate is also provided in the 37B Order No. 35/11/94, dated 7-9-94 in respect of pollution control equipment. 8. There is no dispute or contrary evidence to show that the components/assembly/sub-assemblies cumulatively cleared from the appellant's factory do not form a turbine for hydrau ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
