INDIAN TUBE MILLS AND METAL Vs. CCE

JUDGEMENT

(1.) THE above captioned two appeals have been directed against the common Order -in -Original vide which the Adjudicating Authority has confimed duty demand of Rs. 66,925/ - with equal amount of penalty and interest, against the company - - Appellant No. 1, and also imposed personal penalty of Rs. 1/ - lakh on Appellant No. 2 - - the Vice President of the Company. The duty demand alongwith penalty has been confirmed against the company for having manufactured and cleared one mild steel/Carbon steel storage tank without payment of duty. On appellant No. 2 penalty has been imposed under Rule 209 -A being the Vice President of the Company who facilitated the company in the evasion of the duty on that storage tank.

(2.) THE learned Counsel has contended that show cause notice was issued in respect of 8 tanks which were allegedly manufactured and cleared by the appellants without payment of duty, and 7 out of those had been admitted by the adjudicating authority to be not excisable goods but erred in demanding duty in respect of one storage tank on the ground that it was smaller in size than other seven tanks and could be removed from one place to another. He has also contended that all the tanks were constructed at the fertilizer plant site of M/s Chambal Fertilizer and Chemical Ltd. (CFCL) and permanently embedded to earth and as such, no tank irrespective of its size, height or diameter could be removed from one place to another and as such, one tank could not be singled out and treated as excisable goods. He has also contended that benefit of Notification No. 67/95 dated 16.3.95 exempting the capital goods from payment of duty when used in the factory of production, has been wrongly denied to the appellants in respect of tank in question. He has further contended that benefit of the Board Circular dated 15.1.2002 allowing exemption to the goods including the tanks had been wrongly denied to the appellants. He has referred to the Tribunal's Final Order dated 28.10.2003 in the case of M/s New Constructions and Ors. in which M/s Chambal Fertilizers Ltd. was also a party and vide which the Tribunal allowed the benefit of the above cited Notification No. 67/95 dated 16.3.95 and set aside the order of the adjudicating authority raising the duty demand in respect of the goods involved therein i.e pipes, fittings, etc. and also penalty confirmed against them. The impugned order therefore, deserves to be set aside.

(3.) ON the other hand, the SDR has reiterated correctness of impugned order.