Customs, Excise and Gold Tribunal - Mumbai
Thermax Surface Coatings Ltd. vs Commissioner Of Central Excise, ... on 28 June, 2001
ORDER Gowri Shankar, Member (T)
1. Appeal taken up for disposal after waiving deposit, with consent of both sides.
2. In pursuance of a contract with Indian Refrigeration Co., Chennai, the appellant set up a paint shop in the factory premises of that company, to be used by it for manufacture of paint. The appellant purchased components from the market, and assembled them at site, resulting in the emergence of the plant. The notice issued to the appellant alleged that by this fact the appellant manufactured a paint shop classifiable under heading 84.79 of the Tariff which was liable to duty under that heading. Apart from demanding duty, the notice proposed penalty under Section 11AC of the Act. In the order impugned in this appeal the Commissioner has confirmed the demand for duty and imposed penalty.
3. One of the contentions that the appellant took up before the Commissioner in the reply to the notice was that, assuming that a plant had been set up, it would be entitled to the benefit of the exemption contained in notification 67/95. This notification inter alia exempts from duty on capital goods defined in rule 57Q of the Rules, manufactured in a factory and used within the factory of production. The Commissioner has not dealt with this ground at all. We would, therefore, in the normal course, have remanded the matter for consideration. However, we find that the issue is covered by a decision of the Tribunal in Triveni Engg. & Industries Ltd. vs. CCE 2000 (36) RLT 619. It is not in dispute that the goods are capital goods, as defined in rule 57Q. The rule at the relevant time specified goods falling under heading 84.79 as capital goods. It is also not in dispute that the goods have been used within the factory of their manufacture. The only possible objection could be that the manufacturer of the plant of the capital goods was not the person who has subsequently used the goods. The Tribunal in its decision had extended the benefit of the notification in an identical situation i.e. where the capital goods were manufactured by a person other than the manufacturer who was put to their use.
4. The appeal is accordingly allowed and impugned order set aside.
(Dictated in Court)