TMI Blog2000 (10) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manufacture of Aluminium Conductors (A.A.C.) and Aluminium Conductor Steel Reinforced (A.C.S.R.) and single wires in their factory. The appellants purchased the Aluminium Wire Rods from different manufacturers for the purposes of manufacture of their final product. They also imported Aluminium Ingots under D.E.E.C. Scheme, against the exports made by them. A part of the Aluminium Ingots thus received by the appellants was sent to other job workers for conversion into wire rods under the provisions of Notification No. 214/86 and/or Rule 57F(2) procedure with the prior permission of their jurisdictional Central Excise Authorities. The Wire Rods were brought back in their factory and were used in the manufacture of Aluminium Wires. 2.2The appellants also converted the Aluminium Ingots into Wire Rods which were subsequently drawn by them into wires. Aluminium Wires, which are the final products of the appellant firm were cleared without payment of duty under the provisions of Notification No. 180/88-C.E., dated 13-5-1988. The present duty has been confirmed against the appellants on the Wire Rods which the Department alleges were got manufactured out of the Aluminium Ingots an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged in the present case. 4.The demand has also been contested on the point of limitation. All the show cause notices adjudicated by the Commissioner have been issued beyond the normal period of limitation of six months. In this connection, our attention has been drawn to a letter dated 28-10-1989 written by the appellants to the Assistant Commissioner of Central Excise, Dhanbad intimating to the effect that Aluminium Ingots imported under Duty-Free Licences will be brought to their factory and will be converted into Aluminium Wire Rods in case of imported Aluminium Ingots and this will be further used in the manufacture of AAC/ACSR Conductors. He also submits that the appellants had been clearing their final products without making any debit entry in their Modvat Accounts. From this, the Revenue should have presumed that Wires in question are being manufactured out of non-duty paid ingots. As such, he submits that the demand in question is barred by limitation. 5.Shri Chattopadhyay, learned Consultant for the appellants also contends that the imposition of penalty upon the Directors under the provisions of Rule 209A was neither justified nor warranted. 6.Countering the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposition. Marketability is essentially to be looked into for holding the excisability of the product. However, it is not the factum of actual marketing of the product, which is required to be satisfied. But as long as the goods are capable of being marketed, they have to be held as excisable goods. In the instant case, admittedly, the appellants are themselves manufacturing the Wire Rods from the Ingots. These Wire Rods are stored by them and ultimately, issued for the manufacture of Aluminium Wires, as observed by the adjudicating authority. The appellants are also sending the Aluminium Ingots to their job workers for conversion into Wire Rods. These Wire Rods so manufactured by the job workers were being sent back by them to the appellants and they were further using the same in the manufacture of Aluminium Wires. Thus, the factum of receipt of Wire Rods by the appellants from their job workers and further utilisation in the manufacture of their final product duly establish the capability of the Wire Rods to be marketed. It is seen that the Hon'ble Supreme Court in the case of Andhra Pradesh State Electricity Board v. Collector of Central Excise, Hyderabad reported in 1994 (70) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is unobjectionable." 8.In the instant case, we find that the factum of use of the Wire Rods by the appellants themselves and the factum of supply of the same by their job workers (which may not be in the capacity of buyer and seller) establish it beyond doubt that the Wire Rods of the lengths manufactured by the appellants are capable of being marketed. Certificates produced by the appellants are only to the effect that commercially it is not viable to draw wire out of Wire Rods of shorter length. The said certificates do not support the appellants' contention that it is not at all possible to draw wires from such shorter length of Wire Rods. In fact, the appellants are themselves drawing the said wires from Wire Rods being manufactured by them. It may be mentioned that the Wire Rods of such shorter length do not find very encouraging market, but the same will not turn them into unmarketable goods. As such, we do not find any merits in the appellants' stand that the goods are not marketable. The adjudicating authority has discussed the aspect of marketability at a great length in its impugned Order by referring to the various decisions and judgments of the Tribunal which we fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89, the appellants had wilfully misstated that they will use these Rods in the manufacture of dutiable goods and thus suppressed the fact of use of these Aluminium Rods. The reference, by the adjudicating authority, to the Hon'ble Supreme Court which is the case reported in 1996 (88) E.L.T. 634 (S.C.) approving the CEGAT's decision that though classification list was filed in relation to other articles manufactured by them, non-filing of classification list in respect of the concerned item will invoke longer period of limitation, is appropriate. From the discussions made here-in-above, we are convinced that this is a clear case on facts when the manufacturers did not bring it to the notice of the Revenue that the Aluminium Wire Rods would be utilised by them in the manufacture of Aluminium Wire ultimately cleared without payment of duty, longer period of limitation has been rightly invoked. 11.Accordingly, we confirm the demand of Rs. 9,24,818.54. However, as regards the personal penalty of Rs. 9.25 lakh imposed on the appellant firm, M/s. Gillooram Gaurishanker, keeping in view the overall facts and circumstances of the case, we reduce the same to Rs. 5.00 lakh (Rupees five lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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