Per K.D. Mankar : The dispute in the instant appeals relates to assessment of the turbines for hydro electric equipment of a capacity not exceeding 15 MW. Demands of Rs. 25,43,39,682/- + 28,17,062/- + 6,47,500/- were confirmed against the company (appellant No. 1) along with levy of equivalent amount of penalty under Section 11AC of the Act, besides a penalty of Rs. 25 lakhs was imposed on Shri Maharajkar (appellant No. 2). The period involved is from 16.3.95 to November 1998. The larger period was invoked for demanding the duty from 16.3.95 to 9.2.98 for the first demand.

2. The appellants are claiming the concessional rate of duty available under Notification No. 205/88-CE dated 25.5.88 a amended by notification 57/95-CE. The appellants are placing reliance on the order of the Board issued from F.No. 156/9/92-CX-4 dated 19.5.92 under Section 37B whereunder it has been communicated that clearance of Fluidised Bed Combustion Boiler (FBEB) generally cleared in unassembled or disassembled condition are to be granted benefit of exemption Notification No. 205/88-CE dated 25.5.88 (earlier notification 120/81 dated 15.5.81). The benefit was to be extended subject to the condition that an evidence is produced to the effect that "the goods cleared form part of a complete device" and the evidence is also produced for supply of such a device to the buyer. The appellant also placed reliance on the order of CBEC No. 35/11/94 dated 7.9.94 whereunder, it was advised that the benefit of Notification No. 78/90-CE dated 20.3.90 as amended will be available to all machinery/components/equipment, instruments etc. when these are cleared in CKD and SKD condition from the factory of manufacturer, provided that evidence is produced that "goods cleared from part of a complete pollution control equipment/systems" and the evidence is also produced for supply of such equipment to the buyer. The appellants also sought reliance on the judgment of the CEGAT in the case reported in 1998 (27) RLT 461 (CEGAT)=1999 (105) ELT 498 (T) in the case of Kumar Enterprises vs. CCE, Chandigarh, wherein it has been held that the circular of the Board although pertains to a later notification, the two notifications being identical in their purpose, the Board's clarificatory circular would certainly apply to the dispute arising out of the earlier notification also. Accordingly, it is submitted that the clarification issued in the context of notification which is similar to the Notification No. 205/88 would be applicable to them.

3. Heard both sides. In the impugned Order in Original the Ld. Commissioner held that the parts/components subassemblies manufactured and cleared by the appellant did not form a complete hydraulic turbines at the time of the clearance. the despatch comprised of several consignments and did not occur in one consignment. The same cannot be considered as clearance of CKD/SKD turbines and hence they are to be classified as part of hydraulic turbines classifiable in 8410.90 of the Tariff. It is also observed by the adjudicating authority that, prior to 16.3.95, the party was describing the product as "hydraulic turbines component" and then changed their description as "hydraulic turbine of capacity less that 15 MW". The change in nomenclature was made to take illegally the benefits of the Notification No. 57/95-CE dated 16.3.95 which is the amending notification to Notification No.205/88-CE dated 25.5.88 and which provides full duty exemption to "turbines for hydroelectric equipment of a capacity not exceeding 15 MW."

4. We note that, findings recorded in the order of the Commissioner as to how the circulars of the Board referred to above did not cover the case of the appellants are totally misplaced. It is an admitted position that the turbines for hydro electric equipment of capacity upto 15 MW cannot be cleared as a single piece. It has necessarily to be initially assembled piece by piece into components/sub-assemblies which are then to be assembl