TaxTMI 
TaxTMI 
2002 (3) TMI 151
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....ppellant intimated the jurisdictional Superintendent vide its letter dated 21-1-1994 of its intention to set up these plants and by letter of 9-6-1994 requested for a new personal ledger account. In the order impugned in the appeal, the Commissioner has found that the three plants are each classifiable under Heading 84.79 of the Tariff as a machine having individual functions not elsewhere specified, liable to duty. He has confirmed the demand for this duty that was contained in the show cause notice. He has, in addition, imposed penalty equal to the duty under Section 11AC of the Act on the manufacturer and penalty under Rule 173Q of Rs. 10 lakhs. He has also imposed a penalty under Rule 209A of Rs. 1 lakh on A.S. Kothari, Senior Vice Pres....
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....corded his findings on the merits of the issue at page 36 which we reproduce below :- "During physical verification of the assemblies in question carried out by the officers in presence of panchas and representatives of the Noticee, it was found that the Machineries and its parts gone into assembly were fastened to a base above the ground with nuts and bolts or with the help of base plates for providing stability. This is supported by the photographs taken at the time of verification. The system/machineries were not embedded to earth. This itself shows that the machineries were capable of being removed by way of unbolting. In view of the above observation drawn during physical verification Noticee's contention about immovability of the art....
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....vated surface built on earth for providing stability with the help of nuts and bolts or any other mould like base, plates etc. and such machines and parts together complete these systems/unit. The Officers in presence of us, had taken photographs of Brine system, Electrolyser Cell and Chlorine Liquidation system, to exhibit factual position of these systems." 5.The panchnama thereafter concludes with usual statements recording that the witnesses were satisfied with these contents. The quoted portions above have been taken from the translation in English of the panchnama rendered by the appellant. The panchnama itself is in Hindi. There is no challenge to the correctness of the translation of the panchnama. 6.The dimension and the weight ....
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....partment team was an expert or had engineering experience. Counsel for the appellant makes a positive assertion that Saket Mishra, the appellant's employee who signed the panchnama, was not qualified in engineering in the field. The two witnesses whose occupation is stated to be "service", he says, were Kothari of Gwalior Chemicals Ltd. and Chaturvedi working in Mandalia Chemicals. We do not find that this panchnama serves as a reliable basis for determining conclusively what is basically a complex engineering question as to whether these three plants could not be removed from their mountings with which they were attached to the earth in the appellant's premises and, without disturbing their identity as such plant transported elsewhere and ....
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....ernator did not answer the test of permanency ...." The Supreme Court disapproved this finding. It said that the test of marketability required that the goods "as such" (emphasis) should be in a position to be taken to the market and sold. It said that from the Tribunal's findings "it follows that to take it to the market the turbo alternator has to be separated into its components - turbine and the other alternator - but then it would not remain turbo alternator, therefore, the test is incorrectly applied". By applying this test to the facts before us, it would have been shown that the three plants in question would be capable of being removed intact from the site where installed, transported and reinstalled as such plant elsewhere. It app....
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.... the manufacturer did not disclose to the department that the parts which it was bringing in for setting up a new plant, and not to be used as spare parts. In the light of our finding, the extended period will not be available. 11.In point of fact we do not think that this allegation in the notice is borne out by the facts. In the letter dated 21-1-1994 written to the Superintendent, the appellant had said - "we are in the process of setting up a separate new Industrial unit to manufacture Caustic Soda Lye with membrane Cell technology. This is for your kind information." "Necessary ground plan, etc., will be submitted to you before we commence production...." The appellant has by this letter indicated to the department the fact that it....