TMI Blog1989 (8) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... sked to show cause why duty should not be demanded on the TV cabinets cleared by them during the period 1-4-1979 to 26-11-1982 and from 1-4-1979 to 25-4-1982 respectively and why penalty should not be imposed on them. Both the appellants pleaded that TV cabinets should be considered as handicrafts and they relied on the opinions of several bodies connected with Handicrafts. They referred to the definition adopted by UNCTAD, Inter-Governmental Group of Experts on Tariff Classification, International Labour Office Report on the meeting of Experts on the Role of Industries, Report on the Survey of Handicrafts in Delhi, 1976 by Delhi State Industrial Development Corporation (Government of India) and extracts of books published by All India Handicrafts Board, Ministry of Commerce, etc. They also pleaded that the Department was wrong in clubbing the production of three Units, which they claimed were entirely independent. They argue that these firms - the appellants No. 1, M/s. Ajanta Cabinet Works and Ajay Cabinet House and appellants No. 2, M/s. Mutul Industries and M/s. R.R. Industries - were separately registered under the Income Tax and Sales Tax and had different constitutions. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion arose there and the Tribunal accepted the survey report and other documents which are similar to the documents placed before us in these appeals. Shri Chakraborty formally reiterated the Department s arguments in Padmini Products (supra). However, he persisted with his request for remanding the matter to the Collector. Shri Chopra, the learned Consultant then submitted that he would pray for a decision on merits and pleaded that the matter relates to a period commencing ten years ago and may not be remanded at this stage. He submitted that even if the Tribunal gives him relief on the question of time-bar he would be satisfied and will pay duty upto six months prior to the issue of show cause notices, if ordered to do so. 6. In so far as time-bar is concerned, Shri Chopra, submitted that the show cause notice was issued on 19-5-1983 for the period 1-4-1979 to 26-11-1982 for the appellants at Sl. No. 1 and for the second appellants show cause notice was issued on 19-5-1983 for the period 1-4-1979 to 25-11-1982. He submitted that there are no explicit grounds in the show cause notices and that there are no allegations of mis-statement or suppression of facts, justifying extens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants did not do anything dishonestly or clandestinely. 9. In his reply Shri Chakraborty submitted that the show cause notices contained the essential ingredients to justify the application of enlarged period of limitation. He referred to the enclosures to the show cause notices and submitted that there was enough material there for extending the period of limitation. The learned DR further argued that the show cause notices invoked Rule 9(2) and as this Rule had to be read with Section 11A, and that as Rule 9(2) referred to clandestine removal, it must be presumed that the show cause notices intended to demand duty for the larger period. He pleaded that the Department did not know about the production of the cabinets and, therefore, there was suppression. He further submitted that the availability of set-off under Notification No. 201/79 is only hypothetical and the appellants were liable to pay duty. He submitted that no agreements between the appellants and the buyers were shown to the Department and relied upon a judgment of the Tribunal in the British India Corporation v. Collector of Central Excise reported in 1986 (25) E.L.T. 727 Tribunal. 10. In his rejoinder, Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort-paid, or erroneously refunded by reasons of either fraud or collusion or wilful mis-statement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months. Whether in a particular set of facts and circumstances there was any frauds or collusion or wilful mis-statement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. 15. We examined the facts of these matters keeping in mind the ratio of the Supreme Court decision. We have already observed that the show cause notices do not make any allegation of suppression or mis-statement. In the fact of the accounts maintained by the appellants it cannot be held that there was any attempt by the appellants to suppress their production. They never made any statement to the Central Excise Department an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Board of Excise Customs in an appeal filed by Shyam Sunder Metal Industries and Ors. and reported in 1982 ECR 289D. In this order, the Board held that handicrafts exempted from Notification No. 55/75 are necessarily those handicrafts in the manufacture of which the processes are ordinarily carried on with the aid of power. This order, further held that since there is no difinition of handicrafts in the notification or elsewhere in Tariff Item 68, the meaning assigned to the terms in common trade parlance or by any person dealing with and conversant with the goods has necessarily to be adopted. In para 35 of the same order, the Board held that the term handicraft is not averse to the use of machines in their manufacture so long as the essential character of the product is derived from the handmade aspect. 19. The Board s Orders are not binding on this Tribunal, but prior to the establishment of this Tribunal, the Board was the highest Appellate Authority. Therefore, this order has a persuasive value. 20. A similar view was taken by the Tribunal also in Padmini Products v. Collector of C. Ex., 1988 (35) E.L.T. 543 (Tribunal). In this order, the Tribunal held th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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