TMI Blog2001 (7) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... ish for short). The other appellants are employees or partners of either one of the job worker or of Barish. 2. We are concerned in these groups of appeals with classification of goods manufactured by the job workers out of materials supplied by Barish, their consequent liability to duty related to limitation and liability to penalty. The goods manufactured by the job workers are described as fittings for running water gutters. The eight job workers in question did not pay duty upon these goods and notice was issued to them demanding duty for the clearances made between April, 1995 to May, 1998, by invoking the extended period contained in the proviso under sub-section (1) of Section 11A of the Act. The notice also proposed penalty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assified as pipes. The Note 8 to Chapter 39 on which exceptionally the Commissioner places reliance excludes from classification under this heading with the exception of lay flat tubing of certain kinds of regular pipes, i.e., having an internal cross-section other than oval, rectangular, or in the shape of a regular polygon. The gutters in question satisfy these requirements. Their internal cross-section is semi-circled. Therefore they will not be classifiable under Heading 39.17. Therefore the Commissioner s conclusion that the fittings if at all necessarily be fittings for pipes cannot be supported. That being the case there is no material in the Commissioner s order to rule out the classification claimed by the appellant. For the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the suggestion. 6. That takes us to the next question of valuation. It is the contention of the manufacturers that the goods valuation should be on the basis of cost of manufacture as held by the Supreme Court in Ujagar Prints v. Union of India 1989 (39) E.L.T. 493. The Commissioner in her order arrives at the same value by a different route - deduction from the sale price of various elements. The Counsel for the manufacturers contends that this was inaccurately done. Various elements such as trade discount, etc., were not considered by the Commissioner. He also says that the figures relating to cost of raw material and cost of manufacture was provided to the Commissioner and the value should be determined on this basis. If these fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification. His contention is that these manufacturers did not consciously and deliberately affix the brand name and that they emerged bearing the name only by use of the mould for making these fittings supplied by the raw material supplier, which contained the brand name. This contention is not acceptable. It is the manufacture by putting to use the moulds that resulted in the emergence of articles in question with the brand name. The presence of the brand name, therefore, is the result of the conscious action on the part of the manufacturers. 8. Penalty has been imposed under Section 11AC equal to the duty sought to be evaded. We are also of the view that in view of these observations, penalty also to be redetermined after considering th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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