TMI Blog1994 (10) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... in each despatch case the party was wilfully mis-declaring the plywood cleared by them. I am convinced that the party was deliberately with full knowledge of the gains and consequences removing Shuttering plywood under the guise of commercial plywood. I therefore direct the party to pay the differential duty of Rs. 44,902.13. I also impose a penalty of Rs. 30,000/- (Rupees Thirty Thousand) for having resorted with deliberate intent to defraud the Govt." 2. Before dealing with the case proper the ld. Advocate for the appellants submitted that by an order dated 6-2-1990, the Hon ble High Court at Calcutta has been pleased to sanction the scheme of arrangement for amalgamation and the appellant M/s. Art Plywood Industries Ltd., has been me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be classified as structural plywood and charged to duty at a higher rate than the rate applicable to Commercial plywood. 4. The appellant in his grounds of appeal submitted that what they were manufacturing and describing as Shuttering plywood was nothing but plywood conforming to ISI specification I.S. 303/1975; that they were describing it as Shuttering plywood in their internal financial statements to distinguish it from other plywood for higher management control; that most of their goods were being supplied to the Govt. departments under DGS D rate contract; that under Notification No. 55/79, dated 1-3-1979 as amended all varieties of plywood except the eight items mentioned in the explanation of the Notification were commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said explanation clarified that structural plywood is excluded from the variety known as commercial plywood; that the Deptt. has produced or brought on record no evidence to prove that shuttering plywood was nothing but structural plywood; that shuttering plywood and structural plywood were two dif- ferent and distinct commodities as they had separate ISI specifications; that for shuttering plywood the ISI specification was I.S. 4990/1981 and for structural plywood the ISI specification was I.S. 1070/1983; that the Hon ble Supreme Court in the case of C.C.E. v. Krishna Carbon Paper, reported in 1988 (37) E.L.T. 480 had held that where no trade evidence was available IS specification is to be relied upon that wherever trade parlance or comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have considered the submissions. From the record we find that there is no acceptable evidence on the record to hold that the appellants were manufacturing Concrete Shuttering Plywood and the findings of both the authorities below on this point appears to be based on presumption and conjectures. Even otherwise, in view of the decision rendered by this Tribunal in the case of Collector of Central Excise v. Sudershan Plywood Industries Ltd. supra, it cannot be held that the Shuttering Plywood or concrete Shuttering Plywood would fall in the category of Structural Plywood so as to attract higher Central Excise duty at the rate of 30% on the real value. In this view of the matter, we are not called upon to decide the alternative contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing plywood, therefore, clearly the appellant had suppressed the fact of production of the plywood known as shuttering plywood and so described by them in their internal financial statements as well as monthly statements submitted to the bank. 8. Heard the submissions of both sides. On careful consideration of the arguments pleaded by both sides before us, we find that the short point for decision is whether the plywood described as shuttering plywood in their monthly internal financial statements and statements submitted to the bank is structural plywood attracting 30% or it was commercial plywood attracting 20%. From the evidence that structural plywood and shuttering plywood are recognised as two different commodities as is evident f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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