TMI Blog1999 (9) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant No. 2 which is used in the manufacture of glazed stoneware pipes by the Appellant No. 1 is excisable and dutiable. 2.1 The facts in brief are that M/s. Perfect Pottery Co. Ltd. have three manufacturing units as under; (i) M/s. Perfect Refractories, Jabalpur, Manufacturing Firebricks and Fire clay and Mortars. (ii) M/s. Perfect Stoneware Products, Jabalpur; and (iii) M/s. Perfect Sanitary Pipes, Bharatpur, both manufacturing crushed clay for captive consumption in the manufacture of salt glazed stoneware pipes. 2.2 A show cause notice dated 13-7-1991 was issued for demanding duty Rs. 22,87,896.20 ps. from Appellants No. l on the ground that after taking into account the aggregate value of clearances of all the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not availing exemption under Notification No. 175/86; that by not taking the Central Excise Licence and by not declaring the fact regarding manufacture of crushed clay, they had suppressed the facts and extended period of limitation is available to the Department and accordingly duty is payable on crushed clay and the value of its clearances is includable while computing the aggregate value of clearances under Notification No. 175/86. 3. Shri G. Shiv Das, ld. Advocate, submitted that crushed clay and Batch Mixture are the same things; that the impugned product is not marketable; that no evidence is adduced by the department to prove that the Batch Mixture prepared by the Appellants No. 2 is capable of being bought and sold in the market; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of saltglazed stoneware pipes; that in February 1990 when the officers visited their factory, they were given all the information including the inputs and there was thus no suppression of facts; that further there is no positive act on their part to avoid payment of duty and as held by the Supreme Court in C.C.E. v. Chemphar Drugs and Liniments -1989 (40) E.L.T. 276 (S.C.) something positive other than mere inaction or failure on the part of the manufacturer conscious or deliberate withholding of information is required before it is saddled with any liability beyond the period of six months. He, further, mentioned that even on the question of crushing of lime stone the matter has been held in assessee s favour in Bheraghat Mineral Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgets India Ltd., 1994 (71) E.L.T. 835, (iii) Universal Electrical Industries v. C.C.E., 1994 (70) E.L.T. 279, (iv) Dukart Co. (P) Ltd. v. C.C.E., 1987 (29) E.L.T. 446. 5. Countering the arguments, Shri H.K. Jain, ld. SDR, submitted that the Appellants are confusing between Batch Mixture and Crushed clay; that the Department is demanding duty at the stage of crushed clay and not at the stage of Batch Mixture; that in all the affidavits and letters produced by the Appellants, the question was not put correctly and that is why the Collector did not rely upon them. He also submitted that the process of crushing clay amounts to manufacture. He relied upon the decision in the case of Raymond Cement Works v. C.C.E., 1995 (76) E.L.T. 340 wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rushed and then it is mixed with grog and common earth. The Tribunal also has held in Burn Standard Co. Ltd., supra, that paste of clay obtained by simultaneously crushing of clay and mixing with water at the intermediate stage in the manufacture of salt glazed stoneware pipes is not marketable as no evidence about its marketability was brought on record. In the present matter also the department has not discharged the onus to prove that the product in question is marketable by adducing any evidence. 7. We also find sufficient force in the submissions of the Appellants that by virtue of Explanation III to Notification No. 175/86 no duty becomes chargeable from the appellants. Annexure II to the Notification No. 175/86 is as under :- Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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