TMI Blog1989 (3) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... The question was whether the goods were classifiable under Tariff Item 52 or Tariff Item 68 of the erstwhile First Schedule to the Act. 3. The appellant applied for requisite Central Excise licence for manufacture of goods falling under Tariff Item 68 and for the purpose of such goods L4 licence was also furnished, and also the requisite ground plans of the factory showing the requisite sanction of the factory in which the various goods were manufactured. The excise authorities granted L4 licence. The appellant contends that the same was done after verifying the ground plans. Necessary classification list was supplied on 22nd March, 1979 for approval by the excise authorities and the appellant claimed benefit of exemption of Notification No. 89/79-Central Excise, dated 1-3-1979. The said classification list submitted by the appellant was approved by the Assistant Collector of Central Excise by his letter dated 25th May, 1979. For the period from 1-4-1979 to 30-6-1979, the appellant filed his RT-12 for the assessment, which was also finally assessed without any protest or objection. Inasmuch as, however, as the appellant claimed that its goods were wholly exempted by virtue of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected by the appellant during the period 1st April, 1981 to 19th July, 1982 should be paid, and that the seized goods were liable to confiscation but in lieu thereof a redemption fine of Rs. 4,000/- could be paid within three months, the exports effected indirectly by the appellant were not entitled to benefit of Notification No. 89/79-C.E. and, therefore, the differential duty in respect of those clearances was payable under Tariff Item 68 and that the show cause notice was not barred by time. The Collector, accordingly, imposed a penalty of Rs.1 lac. 5. Aggrieved thereby, the appellant went up in appeal before the Tribunal. The Tribunal partly allowed the appeal of the appellant and partly upheld the order of the Collector. So far as the question of classification of the different fittings was concerned, the Tribunal held that the classification should have been as nuts under Tariff Item 52 of the Central Excise Tariff. The Tribunal also held that the appellant was guilty of suppression and therefore rejected the submission of the appellant that the show cause notice was barred by time. The contention of the appellant in respect of the benefit of exemption being available to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods as canvassed by the appellant was also duly considered by the Tribunal. It was contended that the function of the nuts was not only to fasten but also to enable the flow of oil under high pressure without leakage. But the Tribunal noted that the flow of oil is possible only after nuts are fastened. To that extent, according to the Tribunal, it can be stated that nuts permit the flow of oil without leakage. The question is, however, not as to what is the process facilitated as a result of the nuts, but the question is, which the Tribunal itself posed is - whether the nuts are fasteners or do they have any other independent function? The Tribunal found that it had not been shown before them that they had any such independent function. To say that these nuts are leak proof, was only to reiterate the fact of their essential character and quality as fasteners and not to substantiate any argument as regards their independent function. In that view of the matter, the Tribunal even taking the functional approach to the identity of the goods, came to the conclusion that the goods in question were properly classifiable as nuts. That conclusion of the Tribunal cannot be assailed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of commercial identity of the goods and examined the matter from the angle of the conduct of the appellant. In that view of the matter, we are of the opinion that these findings of the Tribunal cannot be assailed. 9. The next question that has to be determined is whether the claim for duty is only to be confined to the period of six months because it was contended, in view of the facts and the circumstances narrated hereinbefore, that there was no suppression of any fact. It may be relevant in this connection to refer to Section 11A of the Act, which provides as follows :- "When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
