TMI Blog2004 (7) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing penalty alleging that they had not obtained Central Excise Licence and had cleared the goods without payment of duty during the period from 1-8-1983 to 8-7-1985; that thereafter a corrigendum dated 9-10-1985 was issued to the show cause notice wherein the duty amounting to Rs. 9,56,806.02 p was quantified to be payable by them; that by another corrigendum dated 28-11-1986 suppression of facts had been alleged; that another show cause notice dated 18-12-1987 was issued to them by the Collector, Central Excise widening the scope of the notice dated 12-7-85 in as much as it was alleged in show cause notice dated 18-12-87 that the angles, shapes, channels etc. used by them were classifiable under Heading 72.03 of the Schedule to the Central Excise Tariff Act, and scrap and plates under Heading 72.12; that in the show cause notice dated 18-12-87 duty was demanded for the period from 9-7-85 to 10-3-1987; that the Commissioner under the Impugned Order No. 99/1988, dated 12-4-1988 confirmed the demand of duty under both the show cause notices but did not impose any penalty as no mala fide had been brought to light. 3.1 The learned Advocate, further, submitted that the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o referred to Board s Circular 27/89, dated 21-9-1989 wherein it is mentioned that it is felt that Heading 7204 would not cover an article which could be converted into another article by hot rolling without it being necessary to remelt the metal first. The Board, therefore, concluded that Heading No. 7204 read with Note 6a to Section XV and HSN Explanatory Notes at pages 987-988 would cover only such waste and scrap as would generally be used for re-melting and consequently would not cover re-rollable scrap. Such waste and scrap which is not for re-melting will have to be classified in the other appropriate Headings of the Tariff. Therefore, the denial of benefit of exemption Notification No. 202/88, dated 20-5-88 on the grounds that re-rollable scrap is waste and scrap falling under Heading 72.04 is not correct. 3.4 She also relied upon the decision in the case of Vivek Re-Rolling Mills v. CCE, 2002 (146) E.L.T. 496 (S.C.) wherein the benefit of Notification No. 202/88-C.E. was extended to bars and M M rounds/squares manufactured out of using old and used railway materials holding as under : In view of the fact that for the purposes of the sub-item (11) of item 25 of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 97/83, dated 6-8-83 wherein it has been clarified that in case waste and scrap of steel as cleared on payment of duty, the credit of such duty may be allowed under Rule 56A, when such duty paid waste and scrap is used for steel melting in another factory..... Other kinds of products hitherto commonly known as re-rollable and industrial scrap, which are used for purposes other than melting would not merit classification as waste and scrap under the new Item No. 25. These products would have to be classified under the relevant sub-items of the new Item No. 25 as per the definitions given in the Explanation to the said Item. It may be seen from the definitions for goods falling under sub-item (9) and (11) of Item No. 25, that these two sub-items are in the nature of residuary sub-items but mutually exclusive of each other. Hence any product which can not be classified under any of the other sub-items may merit classification under either of these two sub-items. 6.1 We have considered the submissions of both the sides. Notification No. 208/83-C.E. exempts final products specified in the Table annexed to Notification provided the final product is made from any goods specified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of Notification is not available to them. On the other hand, the submissions made by the Appellants are that the waste and scrap, as defined in the Tariff, means waste and scrap of iron and steel fit only for the recovery of metal or for use in the manufacture of chemicals and as the inputs procured by them are neither used for the recovery of metal nor for use in the manufacture of chemicals, these are not waste and scrap. We find force in their submissions which are strengthened by the Trade Notices and Circulars issued by the Collectorate and Central Board of Excise Customs. It has been clarified by the Pune Collectorate in the Trade Notice No. 147/1983, dated 25-7-1983 that the old and used and unserviceable rails which are purchased by the re-rollers for cutting and re-rolling into various products would fall under sub-item (11) of the New Item 25 and hence the same may be treated as inputs for the purpose of Notification No. 208/83. Sub-Item (11) of Item 25 of the Old Central Excise Tariff is specifically mentioned in the description of inputs in the Notification. Again Bangalore Collectorate in its Trade Notice No. 97/83, dated 6-8-83 has clarified that re-rollable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not paid on account of any suppression or wilful mis-declaration with intent to evade payment of duty. It has been held by the Supreme Court in the case of Pushpam Pharmaceuticals v. CCE, Bombay, 1995 (78) E.L.T. 401 (S.C.) that the words suppression of facts used in the proviso to Section 11A(1) of the Central Excise Act has to be construed strictly. It does not mean any omission. The Act must be deliberate. In taxation it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Accordingly, the extended period of limitation is not invokable in the present matter. Learned Senior Departmental Representative has also mentioned that ship breaking scrap which falls under Heading 72.15 of the Central Excise Tariff is not covered by the description of inputs as given in the Notification. A show cause notice for demanding the duty for the period when New Central Excise Tariff was in force was issued on 18-12-87 and the period covered by this show cause notice is 9-7-85 to 10-3-87 which is beyond the normal period of six months and as such is time barred. We accordingly, set aside the impugned order and allow the Appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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