TMI Blog2001 (8) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... d of by this common order. 4.Briefly stated, the facts of the case are :- That the appellants are primary manufacturers of copper and copper products. They are also manufacturing copper wirebar moulds in their factory. In these moulds, molten copper is poured to get copper wirebars. As per the appellants, after sometime the copper wirebar moulds become scrap. The scrap moulds are cut and cleared as waste and scrap of copper on payment of duty under Heading 7404. The dispute in the present cases relates to the demand of differential Excise duty on the scrap of wirebar moulds cleared outside the factory. The contention of the appellants, inter alia, is that in the classification list filed by them, they have never claimed the benefit of Notification No. 171/84. In their appeals, they have taken specific ground that they have never claimed the benefit of Notification No. 171/84 as amended. In both the appeals, the appellants appeared to claim the benefit of exemption under Notification 217/86. In appeal No. 2183/97, they appear to have short-paid Central Excise duty amounting to Rs. 39,65,220.90p (BD Rs. 37,76,400.85 + SED Rs. 18,88,201.35) on the clearance of 251.886 MT copper wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. 887/93-B; that the party had wilfully suppressed the facts and classified the copper wirebar moulds under sub-heading 7404.00 in their classification list as waste and scrap and not as fresh copper wirebar moulds under sub-heading 7419.91; that the appellants had actually manufactured "moulds" and not "scrap" which came into existence due to repeated use in factory and cutting it as cut moulds; therefore, the duty was leviable on copper wirebars and not scrap as paid by the party; that the appellant contravened Rules 173C, 173F, 173G and 173B of the Central Excise Rules and as such rendered themselves liable for demand of duty under provisions of Section 11A(1) of the Act and also penalty under Rule 173Q of the said Rules. 5.The contention of the appellant is that they were not afforded opportunity of personal hearing; that they never claimed the benefit of notification in respect of copper wirebar moulds, therefore, the question of contravention of the Notification No. 171/84-C.E. as amended does not arise. The entire claim of the Department is time-barred as the so called show cause notices have been issued beyond the period of six months and in the absence of any suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation list filed by the appellants, they have duly intimated that the scrap of wirebar moulds when sold outside the factory can be classified under Sub-heading 7404.00 and duty would be paid accordingly at the rate of 3,465 PMT in terms of Notification No. 61/89-C.E. Based on this declaration duty liability has also been discharged accordingly by the appellants. So far as the scrap of wirebar moulds remelted within the factory, the appellants did not pay any duty and claimed the exemption under Notification No. 171/84-C.E. The appellants never claimed the exemption under Notification No. 171/84-C.E. in respect of scrap or wirebar mould sold by them. This position is evident from the classification list filed by the appellants and approved by the Department. Thus, in the classification list, the following facts were duly brought to the notice of the Department; (i) Scrap of wirebar moulds when sold outside the factory would be cleared on payment of Excise duty under Sub-heading 7404.00 at the rate of Rs. 3,465 PMT. (ii) scrap of wirebar moulds when remelted within the factory would be cleared without payment of duty. In view of this disclosure made to the Department, the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions mentioned therein have to be duly satisfied and the same was clearly mentioned in the show cause notice dated 22-11-1993. In the show cause notice dated 17-6-1992 also the above two conditions to be duly satisfied for the purpose of claiming exemption was mentioned and it was stipulated that the party has failed to satisfy the same. As regards the assessees' contention that the benefit of exemption Notification No. 217/86-C.E. is applicable to the wirebar moulds, the said Notification as amended exempts specified "inputs" mentioned as manufactured in factory and used within the factory of production in or in relation to the manufacture of the specified final products. Explanation to this notification clarifies that for the purpose of exemption under notification "input" does not include - (i) machine, machinery, plant, equipment, tools or appliances used for producing or processing of any goods or for bringing of any goods or for bringing about any change in any substance in relation to manufacture of final products, (ii) moulds in question are clearly equipment, tools, or appliances; in this case and, therefore, are not covered by the definition of "inputs" and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the facts of the present case. The Supreme Court in the case of Prabhu Steel Industries Ltd. (Supra) in paras 4 and 5 had clearly held that where the removal of the goods was in accordance with the classification list and all the material facts were before the concerned authorities, simply because there was a change in the opinion as to the correct description of the inputs, it cannot be said that the case falls within the ambit of proviso of Section 11A. There was no concealment of the true facts and the classification list submitted by the assessee had been duly approved under which the removal was made. The proviso to Section 11A is not attracted in the present case. That being so, the SCNs are clearly beyond the available period of limitation. Further, it is seen that the Nizam Sugar Factory case is later in time, however, the Apex Court's decision in Prabhu Steel Industries Ltd. which is earlier in time has not been referred to or considered in Nizam Sugar Factory case. Therefore, in our view as mentioned above, the extended period of limitation will not be applicable in the present case. The Apex Court's decision in Prabhu Steel Industries Ltd. is clearly applicable in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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