TMI Blog1998 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... and 403 bags contained 21,869 rings with red labels. Shri J.B. Sojitra, Company Secretary gave a statement on 9-10-1990 saying the rings found in gunny bags were those which were found unsuitable for manufacture of bearings being not as per customers specifications. The visually scrap rings were given red label and dimensionally defective rings bore yellow labels. He further stated that they followed a practice of storing such rings separately and at the time of sale of such rings they were weighed and accounted for in RG-1 record as scrap of iron and steel. The officers formally seized the rings for non-accountal in RG-1 on 3-1-1991. 2. It was further noticed by the officers on scrutiny of records recovered from the Appellants factory a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso ordered confiscation of scrap rings found outside BSR without entry in RG-1 levying fine in lieu of confiscation of Rs. 50,000/-. A penalty of Rs. 25,000/- was also imposed on the Appellants. 4. Shri M.H. Patil, learned Counsel appeared for the Appellants and Shri S.V. Singh, ld. DR presented the department s case. 5. We have duly considered the rival submissions. The major portion of the demand in Rs. 4,05,354/- being duty on design, development and processing charges recovered through debit notes by the Appellants from their customers during the period 1987-88 and 1988-89. The Appellants have urged that the classification of unmachined seamless rings was in dispute from 1-3-1986 to 29-2-1988. The Appellant claimed classification u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industrial Forgings v. Collector - 1991 (53) E.L.T. 609 as well as Central Board of Excise Customs Circular F.No. 139/79/87-Cx. 4, dated 18-9-1989. This order of the Assistant Commissioner has also not been reviewed and hence the classification of the goods as decided therein has attained finality, and it is relevant and applicable to the material period in this case. We also note that major portion of the supply by the Appellants in this case is of such unmachined rings to M/s Anti Friction Bearings Corp. and the Appellants have obtained a Chartered Accountant s certificate on the costing. Hence of that portion relating to other than unmachined rings, the demand, in our view, has to be redetermined by the Additional Commissioner during w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner has given his finding with reference to the remark of final inspection in the inspection note book of machined rings received from job workers wherein quantities found `O.K. and found defective have been noted. The contention that there are duplication of entries has also been effectively rebutted by observing that the scrutiny of two inspection notes revealed that both are totally different entries of different dates. Further, Tribunal decision in T.M. Industries case was one where the Appellants therein had challenged the very authenticity of the private accounts and it was not so established, whereas in the present case the Appellants admit that inspection reports are their private records regularly maintained. It is also see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 991 only the Department has prescribed procedure for removing goods outside the factory for weighment. They have further stated that the scrap rings could not be cleared also due to the fact that the department had around that time taken the view that the scrap rings are chargeable to duty ad valorem @ 15% and did not allow clearance on specific rate of Rs. 600 P.M.T. The Appellants have relied upon a series of Tribunal decisions including Balls and Cylpebs - 1997 (92) E.L.T. 496 and Garden Silk Mills v. Collector - 1991 (51) E.L.T. 373 to say that goods which are found still within the factory premises, which had not reached the stage of removal cannot be confiscated under Rule 173Q (Central Excise Rules). Examining these contentions, we f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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