TMI Blog2006 (2) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... . The allegation of the DGCEI in the Show Cause Notice to the effect that the appellants mis represented the facts for getting the approval of classification claimed by them has no much basis. Thus, we find that the demand confirmed in respect of Annexures D-4, D-5, D-7 and D-8 is not at all sustainable. It is liable to the set aside. In that case, no penalties can be levied. Hence we allow the appeals with consequential relief. - HON'BLE S.L. PEERAN (J) AND T.K. JAYARAMAN (T), MEMBERS For the Appellant : Shri S.R. Krishnan, Advocate, For the Rspondent : Shri Ganesh Havanur, SDR, Order T.K. Jayaraman, Member (T) 1. These appeals have been filed against Order-in-Original No. 15/2002 dated 8-5-2002 passed by the Commissioner of Central Excise, Bangalore-I Commissionerate. 2. The first appellant M/s. Vaspar Concepts Pvt. Ltd. (VCPL) manufacture backlit Sign Boards and Signages of different varieties and awnings, which are excisable commodities. The officers of the Director General of Central Excise Intelligence, South Zonal Unit, Chennai conducted a search operation on 1-9-1998 at the premises of VCPL and Swaraj Shade and Designs and recovered several documents under Mahazars. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority are not sustainable for the following reasons. The goods manufacture by the appellants were classified under the heading 63.06 as awnings by the Asst. Commissioner. However, the Director General, Central Excise Intelligence Wing, Chennai felt that the goods are classifiable under Sl. No. 94.05. The appellants case is of a bona fide dispute on classification matter and there is no suppression of fact to attract proviso to Section 11A of the Act. Therefore, the entire demand is time barred. When the Asst. Commissioner decided the classification under 63.06, the then Commissioner who reviewed the adjudication order passed by the Asst. Commissioner accepted his decision and no appeal was filed. The Director General, Central Excise Intelligence Wing, Chennai, in these circumstances cannot change the classification arbitrarily. (ii) The self adhesive vinyl stickers/graphics removed under Debit Notes are rightly classifiable under S.H. No. 4901.90 as product of printing industry, in that case the duty liability will be nil. The Commissioner has classified the above item under 39.19.00 and has demanded duty of Rs. 53,816/-(Annexure D-4). This demand is not sustainable. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factories with instructions to deliver the Fascia at their site, where awnings are installed and erected by the appellants. The aforesaid two factories raise invoices in respect of their duty paid Fascia directly on ITC and HCC and payments are also received from them. When such is the case, the value of Fascia supplied by the above two factories to ITC and HCC at their sites is not includable in the assessable value of awnings delivered by the appellants at the same site. The manufacture of awnings was completed at the factory of the appellants without the Fascia in unassembled condition. The awnings without Fascia were delivered at the site of ITC and HCC. The awnings erected at the site of ITC and HCC do not conform to the definition of excisable goods, as they do not satisfy the test of marketability in view of the fact that the same cannot be dismantled and sold and cannot be reassembled at any other site. Moreover, the DGCEI officers searched the factory as early as 1-9-1998 and took possession of number of files and records by which they came to know the alleged under valuation of fascia from the records. In such a case, issue of belated Show Cause Notice dated 2-3-2001 afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d lighting. Since the adjudication order traverses beyond the scope of the Show Cause Notice, the demand cannot be sustained. In these circumstances, when the departmental officers themselves hold two different views in respect of classification of the items, the charge of willful mis-declaration with an intention to evade payment of duty invoking the extended period under proviso to Section 11A is not sustainable, hence, this demand is also time barred. (vii) In view of the above submissions the imposition of penalty of Rs. 13,57,667/- under Section 11AC is not sustainable. 5. The learned SDR pointed out that while dropping certain demands (Annexure D-1, D-2, D-3) the Commissioner has given detailed reasons for sustaining the rest of the demands. He said that the Commissioner has dealt with all the issues in depth and requested the Bench to uphold the order-in-original. 6. We have gone through the records of the case carefully. The main charge against the appellants is that they mis-declared the classification of the goods manufactured by them with an intent to evade duty. On various counts, demands were made in eight annexures to the Show Cause Notice. Out of those demands made i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In such a case, there is no justification for invokation of longer period, hence the demand is not sustainable on account of time bar also. 8. An amount of Rs. 53,206/- in Annexure D-4 is on account of the adhesive vinyl stickers graphics removed by the appellants under debit notes. We find that the debit notes were handed over to the officers after the search of the factory premises in response to the summons dated 15-9-1998 issued to the appellants but the Show Cause Notice has been issued only in 2001. In the Highland Dye Works (supra) decision cited by the learned advocate, it has been held that when the documents containing all available information are supplied to the department and on the date of search department came to know about the activities of the assessee, the charge of suppression is not sustainable. The ratio of the above mentioned case is clearly applicable to the present case. Hence the demand in Annexure D-4 is clearly time barred and not sustainable. 9. In annexure D-7 the amount demanded to the tune of Rs. 6,20,268/- is on account of non-inclusion of the value of fascia supplied by Autographics and Visual Display Systems. In this case also the DGCEI Officers s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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