TMI Blog1999 (6) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, Collector held that Accordingly, the demand of Rs. 6,33,336/- on the value of clearances is held to be payable under T.I. 23A(4). He also imposed a penalty Rs. 10 lac on the appellants. Being aggrieved by this order the appellants filed the captioned appeal. 2. The facts of the case briefly stated are that the appellants purchase plain glass sheets from the market to manufacture wind-screen, back screen and door glasses of toughened and laminated varieties, mirrors, FRP frames and FRP panels etc. In March, 1979 excise duty was levied on their products under T.I. 68 and a classification dispute began. This Tribunal upheld classification of automobile toughened and laminated glasses under T.I. 68. The dispute about mirrors culminated in the decision of the Apex Court in the case of Hindustan Safety Glass holding classification of mirrors under T.I. 68. During the period 1-3-1979 to 31-10-1981, the appellants paid duty under T.I. 23A(4) and T.I. 68. The Range Superintendent asked the appellants to pay duty under T.I. 23A(4) on laminated safety glasses, curved toughened glasses, mirrors, fancy framed mirrors and flat toughened glasses. The appellants filed a writ in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessed glasses for laminated and safety glasses the serial numbers were from 11000 to 12000, for curved toughened glasses 4000 to 5000, for mirrors 26000, 27000, 270000, fancy framed mirrors 1000, 1000 to 2000 and flat for toughened glasses 9000, 10000, 11000. Enquiries also revealed that in cases where the appellant was resorting to misdescribing the goods as plain glass sheet or glass sheet against the correct description of processed glass mentioned in the corresponding work order, the appellant was not issuing gate passes. Enquiries also revealed that whereas in the work order the description of the goods was correctly mentioned, in the invoices incorrect description was given. It was, also, found that the price charged for goods described plain glass sheet or glass sheet was completely in accordance with the rates given in the price list for processed glass. When these prices were compared with the price of M/s. Triveni Sheet Glass Limited, it was noticed that the rates charged by the appellants were 50% to 300% higher. A number of price lists were resumed from dealers. In these price lists, there was not even slightest mention of rates for plain glass. The appellant adopted 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glass mirrors cannot be classified as `other glass and glassware set forth in T.I. 23A(4), and must therefore fall under the residuary T.I. 68. The Apex Court further held that Upon the tests and having regard to the foregoing considerations which have appealed to us when considering the proper classification of glass mirrors, we have no hesitation in holding that the screens cannot be described as glass or glasswares" under T.I. 23A(4). No one dealing in or using the screens would consider them as glass or glassware . They can only be considered as motor vehicle parts. Even if we assume that they could fall under T.I. 23A(4) relating to glass and glassware also inasmuch as T.I. 34A is a special entry and T.I. 23A(4) is a general entry, the special must exclude the general and therefore also it is T.I. 34A which prevails and is attracted." The Apex Court also held that It is clear however, that after amendement of T.I. 34A by the Finance Act, 1979 the scope of that tariff item is restricted to the 15 commodities specified therein. That being so the screens manufactured by the petitioner merit classification in the residuary T.I. 68. 6. Ld. Counsel submits that the SCN is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The tariff sub-heading 8509.00 is for `Electro-mechanical domestic appliances with self-contained electric motor . Therefore, a wet grinder without a self-contained electric motor, will not, prima facie, fall under this sub-heading. Therefore, in the absence of any finding by the Collector (Appeals) on the classification, the classification under sub-heading 8509.00 has to be set aside. For change of classification a fresh show cause notice is to be issued and in such an eventuality the demands would be hit by limitation. The ld. Counsel submits that the written demand for duty under Rule 9(2) of the Central Excise Rules, 1944 has to be served within the time limit prescribed under Section 11A of CESA, 1944. He submitted that in the present case no written demand in the form of adjudication order was served within the prescribed period of 5 years. 9. The Counsel in support of his contention cites the decision of the Hon ble Allahabad High Court in the case of Swadeshi Polytex Limited [1986 (26) E.L.T. 701] wherein it was held that It is well settled that once the order of demand is set aside in appeal the position of the parties is restored to status quo ante. The same was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the ld. Counsel that written demand for duty under Rule 9(2) of the Central Excise Rules has to be served within the time limit prescribed under Section 11A. It was argued that in the instant case, admittedly no written demand in the form of an adjudication order was served within the maximum prescribed period of 5 years. He submits the Hon ble Allahabad High Court in the case of Swadeshi Polytex Limited cited above, clear distinction has been made between a SCN and demand. He also draws our attention to the decision of the Hon ble Karnataka High Court in the case of E.M. Chekkalingam Chettiar [1986 (161) ITR 216] and of this Tribunal in the case of Mac Neil Mager Ltd. [1987 (27) E.L.T. 129] in support of his con- tention that when a particular time limit has been fixed in the statute for a par- ticular purpose, it cannot be reckoned for the purpose of initiating proceedings. 11. Further the contention of the ld. Counsel is that the demand has been confirmed for an amount exceeding the demand and penalty confirmed in the earlier order of 30-11-1988 which was set aside and remanded by this Tribunal and submits that the appellants cannot be put to greater liability on rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the case law on the subject. We find that there is force in the arguments of the ld. Counsel are based on the case law on the subject. We hold that the demand of duty on a particular tariff item cannot be adjusted under different tariff item. 16. The second issue is whether a written demand for duty under Rule 9(2) has to be served within 6 months or 5 years or only a show cause notice for determining the demand is required to be served within 6 months or 5 years. Rule 9(2) reads If any excisable goods are in contravention of sub-rule (1), deposited in or removed from any place specified therein the producer or manufacturer thereof shall pay the duty leviable on such goods upon written demand (within the period specified in Section 11A of the Act) by the proper officer, whether such demand is delivered personally to him or is left at his dwelling house, and shall also be liable to a penalty which may extend to two thousand rupees and such goods shall be liable to confiscation. Section 11A(1) provides When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded a Central Excise Officer may within 6 months from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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