9911796707
TMI Blog1999 (1) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... e of inlet and outlet valves for I.C. Engines by the appellants is an excisable product and is liable to duty under Heading 84.09 of the Central Excise Tariff Act, 1985, as upheld in the said order impugned. The order confirms the duty of Rs. 15,65,824.50 and penalty of Rs. 75,000/- for non-declaration of this excisable product and clearances without payment of duty, as the benefit of Notification No. 217/86 could not available in those cases, where the final products manufactured out of this Upset Forge were cleared under Chapter X without payment of duty to certain specified original equipment manufactures of I.C. Engines. 2. Heard Sri R.C. Kumar, learned Advocate for the appellants, who submits as follows :- (a) The period in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the merits of the issue, the learned Advocate strongly contends that at no stage in the original proceedings, did the Department show that the so called Upset Forges were goods known as such in the market and therefore, excisable. He submits that burden of proof in this behalf lies on the Department. The show cause notice does not even raise this issue. In this connection, he cited the judgment rendered in the case of Bhor Industries as reported in 1989 (40) E.L.T. 280 as well as in the cases of Cipla Ltd. v. U.O.I. as reported in 1990 (46) E.L.T. 240 and C.C. v. Bakelite Hylam Ltd. as reported in 1990 (46) E.L.T. 552. The learned Advocate contends that in ground (b) of their appeal before us, submission has been made that though a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame item of the tariff. 3. Heard Sri S. Sankaravadivelu, learned JDR, who submits that the issue of time bar has already been considered in detail in the order impugned in para 17 thereof and that the issue of excisability of the product has also been dealt with in paras 12 to 16 of the order impugned and he reiterates the same. 4. We have carefully considered the rival submissions and records of the case. We find that as far as the merits of the case is concerned, if the learned Collector has sought to apply the Note 2(a) of the Interpretative Rules to the intermediate product namely 'Upset Forge' arising during the process of manufacture, then as per the existing law clearly laid down by the various decisions including that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, inasmuch as that when an assessee holds a bona fide belief that he is not manufacturing any excisable goods, and yet submits all details of the manufacturing process to the Department, then it cannot be said that he has committed any positive act, by which he has suppressed wilfully any information for the purpose of evasion of duty.
6. Under these circumstances, we are clearly of the considered view that the demand also suffers from limitation barring the last few months. However, as we have already held that there is no evidence on record regarding marketability of the alleged product, therefore, the demands are not sustained and the order impugned is set aside.
7. The appeal succeeds accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
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