2000 (6) TMI 63

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....e notice dated 11-3-1985. Grounds urged in the show cause notice were that the assessee, appellant in this appeal, wrongly availed the benefit of Notification Nos. 105/80 and 77/83. 2.In order to understand the stand taken by the department, it is worthwhile to deal with Notification No. 105/80 at the outset itself. Notification No. 105/80 dated 19-6-1980 gave certain benefits to small-scale manufacturers of goods falling under Item 68 on clearances not exceeding Rs. 30 lakhs in a year. As per that notification, Central Government exempted goods falling under Item 68 of the First Schedule in respect of first clearances for home consumption by or on behalf of the manufacturer from one or more factories up to a value not exceeding Rs. 30 l....

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....ly, the benefit of the notification was denied. The question before us is whether the calculation resorted to by the Collector in fixing the value of the clearances at an amount above Rs. 30 lakhs is proper or not. 3.In arriving at the total value of the clearances, Collector included the value of kettle, chimney and processing unit. Value of the kettle was fixed at Rs. 1,04,521.11, that of chimney at Rs. 32,075.90 and that of processing unit at Rs. 2,89,778.88. These three items along with furnace form the galvanising machinery. According to the assessee, these three units together with furnace which make the galvanising machinery are not goods as contemplated by excise law but are immovable property embedded to the earth. They are fixe....

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....Paper Mills Ltd., another Bench of coordinate jurisdiction, on facts came to the conclusion that the machinery involved in that case was not attached to the earth. Their Lordships took the view that machinery which were attached to concrete base were so done to prevent wobbling and to secure operational efficiency only. After considering the decision in Sirpur Paper Mills Ltd., the Supreme Court in Duncans Industries Ltd. came to the conclusion that machinery which are attached to concrete base are immovable property. Galvanising machinery of which furnace, kettle, chimney and processing unit form part are squarely fastened to the earth and are not movable. In the light of the decisions of the Supreme Court referred to earlier, we have no h....

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....llector was wrong in adding the value of kettle, machinery and processing unit in finding out the value of the clearances as was done by him in the impugned order. When the value of these three items is excluded, the value of clearances falls far below the limit fixed in Notification No. 105/80. This means that the assessee is entitled to the benefit of the notification for the year 1981-82. 6.For the year 1982-83, value of the goods cleared was given by the assessee at Rs. 39,98,797.49. This was below the limit of Rs. 40 lakhs fixed for that year. By the impugned order the said amount was enhanced to Rs. 40,75,651.49. This figure was arrived at by adding the value of kettle at Rs. 76,853.98. As stated earlier in our order, kettle by its....

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....nsportation and other expenses and column 6 was in respect of apportioned cost. The figure under column 4 was Rs. 17,76,527.67. The transportation charges under column 5 came to Rs. 29,077.04. Apportioned cost was shown as Rs. 2,14,061.00. The amounts shown in all these three columns were added together by the Collector to find out the cost of the plant and machinery. Thereby he arrived at the figure of Rs. 20,19,665.71. A perusal of annexure 'A' shows that the assessee claimed transportation charges in respect of goods brought from outside the factory. That expenditure incurred in bringing the materials to the factory could not have been added to the cost of plant and machinery. In other words, the Collector was clearly in error in adding ....