9911796707
TMI Blog1983 (2) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... rod assembly. He brought to introduce an affidavit of the appellant's Works Manager regarding the function which the piston performed but this being fresh evidence was not allowed to be introduced by the Bench. 2. Shri Sarvanai then argued that all parts of motor vehicles falling under Item 34A of the Central Excise Tariff were exempt from duty under Notification No. 99/71-CE, except the parts specifically named in the said notification and excluded from the purview of the exemption. Entry No. 6 added in the said exclusion list on 17-3-1972 by amending Notification No. 95/72-CE read as under :- "6. (a) Pistons. (b) Piston rings. (c) Gudgeon pins. (d) Circlips." Shri Sarvanai maintained that the manner of listing pis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns used in shock absorbers were dutiable. In any case, since they had used all the subject pistons captively in their factory for manufacturing piston rod assembly which in turn is a component of shock absorbers, all that they needed for observance of Chapter X procedure was to get a L-6 licence which was only a technical formality. He stated finally that the subject pistons were not marketable as such and that only piston rod assembly in which they were used was marketable. On a query from the Bench, Shri Sarvanai stated that the appellants had not advanced this argument at the original stage as they were never called upon to show cause against durability of pistons. 3. Shri Raghavan Iyer, on behalf of the Department, admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted even by the Department's representative. His argument that the defect in the show cause notice was cured in the Order-in-Original is hardly acceptable. The appellants were entitled to a proper notice calling upon them to show cause why duty should not be demanded in respect of the subject pistons before the Order-in-Original was passed. Since no such notice was given to them, we held the subsequent proceedings culminating in the Order-in-Original and Order-in-Appeal as bad in law and, accordingly, we quash them. There is no point now in remanding the case to the lower authorities for fresh adjudication in accordance with law since, in view of the Assistant Collector himself having held that Rule 10 and not Rule 9(2) was applicable and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of piston rods. The "piston" therefore is not an object for the purpose of determining that it is one of the parts on which the demands were issued. It is a word (adjective) which defines the word "rod". Therefore, the question of "what kind of rod the Superintendent had in mind," the answer would be "A piston rod". The assembly does have a piston rod quite distinct from the piston. This piston rod is a member to which the piston is attached. Therefore, it is known as a piston rod. There may or may not be a piston attached to it at a given time but reference to a piston rod must be understood as a reference to the rod and not to the piston even if the piston is attached to it. There are similar rods in a motor car; for example, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision-making authority, because the rule number or section number is not material so long as the power sought to be exercised is legally and validly exercised. The question now is whether that is the case in these demands and whether the recovery of duty under Rule 10 remains unvitiated by quotation of Rule 9(2) whereas the power was exercised under Rule 10. Rule 9(2) was resorted to in the demand because there was suspicion that there had been suppression of the production in respect of which the demands were issued. However, as we have seen, the demands were enforced by exercising power under a different rule. It is not that the same power was exercised as had been proposed under the show cause notice but that a different power were emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
