2015 (10) TMI 2264

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....e purchase order from Bhopal unit of BHEL for supply the item namely, Automatic Storage Retrieval System (ASRS). Some items for bring into existence of the complete ASRS, the appellant bought from the market, some of the items from other vendors and directly supplied at site on payment of excise duty and some of items manufactured themselves and cleared on payment of duty. All these items were assembled, erected and installed as ASRS at the site of Bhopal unit by the appellant i.e. Hyderabad unit. The Revenue is of the view that the complete ASRS which was brought into existence at the shop floor of the Bhopal unit is classifiable under Central Excise Tariff Heading 84.26 as capital goods. Therefore, the appellant is liable to pay duty ther....

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..... In rejoinder, the learned Counsel for the appellant submits that the appellant is not contesting the issue of movability at this stage and is contesting only the issue of benefit of notification No. 67/95 and same can be raised at the appellate stage as held by this Tribunal in the case of Tambraparani Containers (P) Ltd. vs. CCE [2005 (187) ELT276 (T)]. Therefore, appeals be decided on merits 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 ....

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.... follow that the penalties on M/s. TPCL cannot be sustained. A benefit will, incidentally, flow from this decision to APCL insofar as the penalty 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......hereby exempts - (i) capital goods as defined in Rule 57 Q (57AA) of the Central Excise Rules, 1944 manufactured in a ....

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....ellants, 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 the first show cause notice was issued, subsequent show cause notice issued clearly after a period of six months is hit by time limit. Following the ratio of this decision, we hold that the extended period of limitation is not invokable in the facts of the present matter Notification No. 67/95-C.E. exempts the Capital Goods as defined in rule 57-Q manufactured in a factory and used....