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TMI Blog1991 (5) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... al Works. He claimed that 20 coils bearing slips with markings "Z" were to be delivered to Shri Champakbhai, 10 coils marked 'ZX' to Shri Motichunni and the remaining 10 coils marked '10' to Shri Chan- dukanji. 3. He produced challan No. 372 dated 26-7-1988 for 40 coils of copper wire bars of over 6.00 mm cross section weighing 4654.350 kgs consigned to M/s. Johnson Electrical, Baroda and on Annexure III No. 816 dated 13-7-1988/26-7-1988 covering 5.61945 M. tonnes of copper wire exceeding 6.00 mm thickness consigned to M/s. Johnson Electrical, Baroda. Shri Raj Kumar further stated that even though the challan and Annexure III in his possession showed M/s. Johnson Electricals, G.I.D.C., Baroda as the consignee, the goods were to be delivered in Surat to the three parties named by him. 4. Both the driver and the conductor of the vehicle informed the officers that under instructions from Shri Ram Avtar Gupta of Nagpur, Surat Transport Co. on 26-7-1988, they had gone to M/s. Patel Metal Works at about 15.00 hours and after loading a consignment of 40 coils of copper wires under instructions from the partner of the firm they were proceeding to deliver the goods to the persons who were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed the impugned order dated 4-7-1989. 11. On behalf of the appellants the learned Advocate Shri Willingdon Christian appeared before us. He stated that the department had sought to classify the goods under Heading 7408.11 as copper wire having cross sectional dimension exceeding 6.00 mm attracting duty Rs 6200/- per MT as against the assessment under Heading 7403.19 read with Notification No. 178/88 claimed by the assessee. He contended that the Additional Collector's observation that the description of the product had been completely changed to suit the requirement of Heading 7403.19 was with reference to the revised classification list No. 33/88 dated 5-7-1988 and not in regard to the classification list No. 33/88 dated 10-3-1988. He contended that on account of the clearances during the relevant period having been effected in terms of the approved classification list under Heading 7408.11 against Gate passes and RT-12 returns having been filed and assessed by the department regularly there could be no charge of wilful suppression or misrepresentation. He argued that under these circumstances the Collector's decision to invoke the extended period under Section 11A(1) provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physical check was on account of burning losses but it appeared that the actual losses on this account were of the order of 1.5%. He contended that having regard to the overall turnover of 1,25,000 tonnes, these losses were ignorable. He contended that the adjudicating authority was not justified in imposing the redemption fine of Rs. 75,000/- since the goods were not physically available. He contended that the Collector could have appropriated only the cash security of Rs. 25,000/- in terms of the relevant Bond. In this regard he referred to the Tribunal's decision in the case of Garner and Well (India) Ltd., Vapi v. Collector of Customs and Central Excise reported in 1986 (25) E.L.T. 338 = 1986 (6) ECR 297 (CEGAT). 12. On behalf of the department, the learned SDR Shri R.M. Ramchandani stated that at the time of seizure of 40 coils of copper wire on 26-7-1988, the classification list No. 33/88 dated 5-7-1988 was in vogue in which the goods were described as "Refined Copper and Copper alloy, unwrought refined copper (copper wire rods in copper form) and classification was claimed under Heading 74.03(19) read with Notification Ntf. 178/88. He contended that the Collector had correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory in contravention of Rule 52A(5) and Rule 173Q(1) of the Central Excise Rules, 1944; (4) Whether duty was recoverable under Heading 7408.11 of the Central Excise Tariff on 70.1029 M.T. of copper wire cleared from the appellants factory between 11-4-1988 to 25-6-1988; (5) Whether duty was recoverable on copper wire weighing 1947.100 kgs. found short with reference the RG 1 balance. 14. For examination of the first point it would be desirable to refer to the classification lists filed by the appellants during the relevant periods. It is seen that on 10-3-1988 classification list No. 71/88 giving the following particulars was filed: S.No. Description of goods Chapter Heading Rate of duty Notification No. & date 1. Copper wire of refined copper of which maximum cross-sectional dimension exceeds 6 mm. 7408.11 Basic Duty Nil 98/88 dt. 1-3-1988 S.No. Description of goods Chapter Heading Rate of duty Notification No. & date 2. Copper wire of copper alloys of which the maximum cross-sec tional dimension ex ceeds 6 mm. 7408.11 Basic Duty Nil -Do- 15. Thereafter on 5-7-1988 the appellants filed classification list No. 33/88 in which the following details were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parlance. We find that there is no evidence on record, on the basis of which inference could be drawn in regard to the meaning of the term 'wrought' as understood in the trade or common parlance. It is seen that in the case of Star Paper Mills Ltd. v. Collector of Central Excise reported in 1989 (48) E.L.T. 178 (SC) the Hon'ble Supreme Court had observed that "The First Schedule to the Act specifies the excisable goods under various tariff items. In the absence of any definition of the term "component parts it is permissible to refer to the dictionary meaning of the word "Component". Having regard to these observations of the Hon'ble Supreme Court it would be permissible to interpret the term 'wrought' on the basis of its dictionary meaning. In this regard we find that in the Mc. Graw Dictionary of Scientific and Technical Terms (Second Edition) the term 'wrought Alloy' has been defined as "An alloy that has been mechanically worked after casting". We find that a similar inference can be derived as regards the meaning of the term 'unwrought' from the following extract from the Note (d) on Bars and Rods in Chapter 74 of the Central Excise Tariff: "Wire bars and billets with their e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants have misdeclared "Phenol" as drug in the classification lists. However, on going through the classification lists, we find that it has also been declared as "disinfectant" and therefore there has been no mis-declaration on the part of the appellants. We have also carefully considered the above citation relied upon by the appellants. In the case of Mac. Laboratories (P) Ltd. v. CCE -1985 (19) E.L.T. 307, the Tribunal held that the special period of limitation is inapplicable if misstatement/suppression of facts is neither alleged in the show cause notice or proceedings nor speltout in detail in the adjudication order. In the case of Nat Steel Equipment (P) Ltd. v. CCE -1988 (34) E.L.T. 8 the Supreme Court observed that "in the absence of proof of suppression of facts, the longer period of 5 years would not be applicable/The appellants having set out all the details in the classification list and the Department having assessed the goods under T.I. 68 they cannot turn round and allege that there was intention to evade payment of duty. As such the modification of the classification list would only be prospective and not retrospective". 19. We find that apart from the fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d were to be delivered to three parties in Surat city who were to be pointed out by the person who had accompanied them from the factory. They had also disclosed that on that day at about 12.30 hours after loading another lot of 40 coils of copper wire bars at the appellants factory, they had accompanied three other persons from the factory for delivering the goods at a premises at Khadri Sheri in Surat. Shri Raj Kumar Maurya who was found in the detained vehicle claimed that he was working in the appellants factory. He named three parties of Surat and claimed that in accordance with the instructions given by Shri Mauzambhai, one of the partners of M/s. Patel Metal Works, the seized goods were to be delivered to them. He disclosed that Shri Mauzambhai had given him Rs. 300/- towards the transportation charges for the goods. He also claimed that slips bearing distinctive markings had been affixed to coils to facilitate the identification of the goods meant for each party. He pointed out that though in challan No. 372 the goods were shown to have been consigned to M/s. Johnson Electricals, Baroda., they were to be delivered to three parties in Surat. On being questioned on 1-8-1988 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physically available for confiscation. In this regard it is seen that as held by the Tribunal in the case of M/s Garner & Well (India) Ltd., Vapi v. Collector of Central Excise, Baroda reported in [1986 (25) E.L.T. 338] and [1986 (6) ECT 297] when the seized goods are released provisionally against a bond there can be no redemption fine and the only option available to the adjudicating authority in such a situation, would be to enforce the bond in a court of law. In this case, it is seen that while refraining from confiscating the goods which were not available for confiscation, the adjudicating authority could not resist the temptation of imposing a redemption fine of Rs. 75,000/-. For this purpose, he ordered the appropriation of the cash security of Rs. 25.000/- in terms of B-11 Bond and recovery of a further sum of Rs. 50,000/- from the assessee. In view of the decision of the Tribunal quoted above, we hold that in this case only the order appropriating the cash security of Rs. 25.000/- in terms of the B-11 Bond executed by the appellants is sustainable and the order regarding the recovery of a further sum of Rs. 50,000/- from the appellants has to be set aside. 26. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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