TaxTMI 
TaxTMI 
2005 (8) TMI 6
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....alty under Section 11AC of the Act. There is a penalty of Rs. 5 lakhs on the Managing Director. It is the contention of the Revenue that for the purpose of manufacture and clearance of the said item namely solar power electric power fencing system, they bring in various items which are also duty paid such as insulator, insulation test tool kit, battery charger and also procured various items from outside stores. They get G1 wire, springs, battery, solar panel and Voltage Stabilizer etc. as bought out items and procured items such as Kiwitha Post, posts and pipes etc. on job work basis and imported certain items such as six channel Controller and Key pad etc. These are all erected as a fence at various sites. The Commissioner after exa....
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....e Commissioner in the impugned order has not referred to these materials but has held that the demands are not barred by time despite the show cause notice issue on 26-12-2003 for the period October 98 to October 2003. 2. Learned counsel submitted that the item is fixed on the walls and separately also on poles and they are not classifiable as electrical machines and apparatus having individual functions under the Heading 8543.90. He refers to explanatory notes of HSN Chapters 2312 and contend that what is included under Heading 8543.40 is only electrical fence energizers and not the item in question. He further submits that in terms of the Apex Court judgment rendered in the case of Triveni Engineering and Industries [2000 (120) E.L....
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....in the case of Srichakra Tyres Ltd. v. CCE reported in [1999 (108) E.L.T. 361] confirmed by Supreme Court as reported in 2002 (142) E.L.T. A279. He also submitted that Modvat credit is also required to be granted to the duty paid inputs in terms of the following judgments. (1) Keltron v. CCE, Cochin [2004 (166) E.L.T. 68] (2) Merinoply & Chemicals Ltd. v. CCE, Shillong [2001 (135) E.L.T. 470] (3) Kesha Sales (P) Ltd. v. CCE, Meerut [2001 (131) E.L.T. 59] (4) Lakshmi Card Clothing Mfg. Co. Ltd. v. CCE, Madras [2001 (129) E.L.T. 116] (5) CCE, Bombay v. Bamcee Ltd. [2001 (128) E.L.T. 126] 3. Learned SDR filed deta....
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....r another place. Therefore it satisfies the test of movable property. He refers to the Apex Court judgment rendered in the case of Sirpur Paper Mills [1998 (97) E.L.T. 3 (S.C.)] which lays down the proposition that imbedding the machinery in a concrete base to ensure it's wobble free operation does not make the commodity immovable property in the sense a building or a tree is. He points out that poles which are the basis for fixing the wires and fence can be removed and refixed elsewhere. He submitted that larger period can be invoked. 4. On a careful consideration and examining the impugned order, and the record, we are satisfied that the item which has come into existence is an electrical appliances having individual functions. All....