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Vinolia Ice and Allied Industries Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1984)(17)ELT214TriDel
AppellantVinolia Ice and Allied Industries
RespondentCollector of Central Excise
Excerpt:
.....customs, new delhi under no. 2786-c. no. 76-c.e./76 dated 23-12-1976. the appellant has fabricated storage tank of 10' x 44' x4' with a special design at their factory site. according to the appellant this storage tank was not meant for sale and was intended for storing and cooling candies. this storage tank is also meant for keeping aerated and water bottles and it has an inbuilt compressor and condenser. the assistant collector held that this item would be a 'cabinet' not exempted under notification no. 80/62-c.e., dated 24-4-1962, as amended. he imposed penalty of rs. 100 and directed levy of duty assessed on the value of the item at rs. 3000. he also imposed redemption fine of rs. 100. on appeal, the appellate collector confirmed the redemption fine of rs.100 but waived the penalty.....
Judgment:
1. The appeal is against the Order-in-Appeal of Appellate Collector, Central Excise & Customs, New Delhi under No. 2786-C. No. 76-C.E./76 dated 23-12-1976. The appellant has fabricated storage tank of 10' x 44' x4' with a special design at their factory site. According to the appellant this storage tank was not meant for sale and was intended for storing and cooling candies. This storage tank is also meant for keeping aerated and water bottles and it has an inbuilt compressor and condenser. The Assistant Collector held that this item would be a 'Cabinet' not exempted under Notification No. 80/62-C.E., dated 24-4-1962, as amended. He imposed penalty of Rs. 100 and directed levy of duty assessed on the value of the item at Rs. 3000. He also imposed redemption fine of Rs. 100. On appeal, the Appellate Collector confirmed the redemption fine of Rs.100 but waived the penalty of Rs. 100. When the appeal was taken up today, none represented the appellant. Mr. S. N. Khanna, JDR represented the Department. We are disposing of the appeal on merits on the basis of written submissions of the party and after hearing Mr. Khanna. The facts of the case are not disputed. Mr. Khanna mainly argued that Item 29A contemplates refrigerators and air-conditioners which were ordinarily sold or offered for sale. The third limb of the entry contemplates parts of refrigerating and air conditioning appliances and machinery. He developed an argument that since the words "ordinarily sold or offered for sale are not found in the third limb, it must be taken that irrespective of the sale, the very manufacture of such part would be excisable. We are unable to accept the contention of Mr. Khanna. We find that in an earlier order No. 110/84-B, dated 25-1-1984 this Tribunal (based on findings on a decision reported in 1980 E.L.T. p.

600 Mother India Refrigeration Industries Pvt. Ltd. v. Superintendent of Central Excise) held that the central idea of Entry 29A was that dutiable articles must be an assembled unit which is ordinarily sold or offered for sale and if a person erects a unit with his old machinery not intended for sale it is not liable to duty. Similarly, component parts manufactured in the site are equally outside the purview of Item 29A as they are not assembled units. The ruling in Order No. 110/84-B was also in case of small milk dairy unit the appellant therein purchased second hand compressors and copper tubes from local markets and they were soldered together with compressor by means of tubes.

Applying the ratio of Ahmedabad High Court, this Tribunal held the item would not be an excisable commodity. In the present case, it is seen from the order of the lower authorities that the "Cabinet" or the "storage tank" was manufactured out of old tank purchased from the kabaries. On the facts of the case, we find that the parts assembled by their appellant herein cannot be considered to be Cabinet within the meaning of the exemption notification and under those circumstances, the appeal is allowed with consequential relief.


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