TMI Blog2003 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the Central Excise Officer (Preventive) to their factory and certain enquiries conducted by them. The show cause notice demanded duty of Rs. 65,15,362.50 in respect of 24,481 Television sets cleared by them during the period 17-6-92 to 10-12-92. The demand was made by invoking to proviso to Sec. 11A(1) of Central Excise Act, 1944 read with Rule 9(2) of the Central Excise Rules and also proposed the imposition of penalty under Rule 173Q. The notice was replied on behalf of the company and on behalf of Mr. J.S. Jhaveri, Managing Director of the appellants company. After grant of a personal hearing the impugned order dated 31-10-97 was issued on 21-11-97 confirming the demand of duty, imposing a penalty of Rs. 20 lakhs under Rule 173Q on the appellant-company along with a penalty of Rs. 20 lakhs on Shri J.S. Jhaveri, Managing Director of the appellant-company under Rule 209A. Hence these appeals. 3. After hearing both sides and considering the material on record, it is found : (a) The Commissioner vide the impugned order while considering the plea, whether there was no misdeclaration in this case and on material to exist to invoke the larger period, as per the first p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate users, who had purchased the 4 models of TV sets in question, he found that the TV sets were operatable by a command unit, which was supplied to the customers by the dealers of the noticee and relying upon the statement of an Electrical Engineer of the manufacturers factory, that the aforesaid TV sets had inbuilt receiver circuits and that one command unit which could be used for one model could be used for another, provided the internal circuits of the two models matched and the fact that the admitted position emerging was that for operating TV model COSY-DDS with inbuilt receiver circuit, the remote control command unit of COSY-R could be used for operating the 8010 model. Therefore it was established that by the manufacturer of the said models of TV inbuilt receiver circuit of the component/parts such as capacitors, resistors, ICs and infra-red receivers were being used and the admitted position that cost of such sets was more than TV sets without such circuits it was held by the adjudicator that such inbuilt receiving system which is having a very negligible impact on the cost of colour TV set, to the extent of only Rs. 30/- - Rs. 40/- and that no businessman would incur an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or thousands of miles. Remote control improves the ease and efficiency of operating various mechanisms. It also helps perform certain tasks that otherwise would be too difficult or dangerous. Remote control requires a device called a command unit, by which the human operator sends signals that control the system. As the system performs, the operator checks it and may send additional signals to keep it working correctly. In simple remote control systems, the operator can check the performance of the system merely by observing it. Complex systems may include instruments that provide information on performance. Kinds of remote control can be grouped according to the way the command unit sends signals to the system. Some command units send signals by radio waves. Others use infra-red light beams, ultrasonic waves, a device called a laser, electric wires, the human voice, or even mechanical hands. Infra-red remote control is used to operate such devices as TV sets and video cassette recorders (VCRs). A device called a Photodetector receives the beam of infra-red rays from the command unit. The photodetector converts the rays into electronic signals, which control the on-off switch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22]. The notification has to be interpreted in the manner in which it would be understood in Technical terms of the remote control facility being available or not available. (iii) The dealers/consumers, were concerned with handsets supplied TVs to be the TVs with such a facility. Not the TVs supplied without handset. What the dealers did further or other buyers did should not effect the classification which should be of the goods as they were at the time of clearance. (iv) The Department of Electronics, Government of India vide their letter No. 22(1)/93/Exp, dated 10-8-93 have clarified what a C-TV (Colour TV) set with remote control facility, should mean and this clarification, is that TV with remote control facility would mean with a hand held remote control unit. They have further clarified the built in remote control signal receiving circuit does not imply the set to be with remote control facility, if it is not supplied with a hand held remote control unit. This clarification of the Department of Electronics, Government of India. They relied on the following decisions in this respect :- (i) Ahuja Radios [1997 (93) E.L.T. 344] (ii) Wipro Ltd. [1999 (107) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssential requirement of that control system. Without the hand held control unit, the system would not exist or and would be an incomplete facility. An incomplete remote control facility, is not what is contemplated in the notification, it contemplates a full system or complete facility. Therefore, TV sets with only the infra-red ray window consequential circuits inside, would not constitute to be a TV set with remote facility . (vii) If the hand held unit is not supplied/cleared along with the TV, then remote control facility and the quality of it being performed or the ease of performance of availing that facility would not arise. The word facility as defined in New Webster s Dictionary of the English Language reads as follows :- Facility. The quality of being easily performed or guided; ease in performance; readiness proceeding from skill or use; dexterity; freedom from difficulty; the means by which the accomplishment of anything is rendered easier; often pl. something built and activated to serve a particular purpose; as, the school s luncheon facilities. Therefore, an inbuilt provision for infra-red ray window, in the TVs, would not constitute to be a facility, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the second proposition whether the demand was barred by limitation of time, it is found that the Commissioner has come to the following findings as regards the same : The contention of the noticees that the demand is time-barred and that no penalty is liable on them is also found baseless as they had indulged in organized evasion of duty by taking shelter under the argument that the 4 models of TV sets are cleared from their factory without any remote control hand unit. (ii) The ld. JCDR for the Department relied upon the decision of Hon ble Supreme Court in the case of Sri Vallabh Glass Works Ltd. [2003 (153) E.L.T. 494 (S.C.)] and Chemphar Drugs Ltd. [1989 (40) E.L.T. 276 (S.C.)], to submit that the mere fact that classification lists were approved by the proper officer in the present case, would not lead to the conclusion that the time bar should be applied. Since what was cleared in the present case, was the product, which have been shown in the classification list, relying on the Hon ble Apex Court decision in the case of Shri Vallabh Glass Works Ltd., the clearance should be held without filing any declaration. (iii) In the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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