TMI Blog2001 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... this Appeal No. E/401/2000-D. 2.The facts of the case in brief are that the appellants are engaged in the manufacture of Uninterrupted Power Supply System (UPS). The officers of Central Excise visited the factory premises of the appellant on 16-12-1994. They found that during the period 20-3-1992 to 13-7-1992 the appellants had cleared Lead Acid Batteries valued at Rs. 9,07,600/- involving duty amounting to Rs. 98,838.50. Accordingly, a Show Cause Notice was issued to the appellants asking them to explain as to why duty amounting to Rs. 98,838.50 should not be demanded from them inasmuch as they had not been paying duty on the value of batteries being cleared as part of the UPS system without including the value of the Lead Acid Batteries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was classification of UPS system. He submits that the issue has finally been settled by the Larger Bench of this Tribunal in the case of Luminous Electronics Ltd. reported in 2001 (129) E.L.T. 605. It was submitted that the supply of battery was optional; that the batteries were being separately supplied also; that whenever any customer did not like to take batteries, he could take the other apparatus; that this clearly shows that batteries were not the core of the system. He submitted that since the supply of the batteries was optional, therefore, the question of inclusion of the value of the battery in the value of the UPS system was not necessary. 7.Ld. Counsel submits that the appellants were not manufacturing batteries. They were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1944) since the defaulters enumerated in the said proviso are more than one, therefore, the authorities are required to specifically state for which of the default the assessee is charged. Ld. Counsel submitted that in the case of Pushpam Pharmaceuticals Co. v. C.C.E., Bombay reported in 1995 (78) E.L.T. 401, the Apex Court observed that the Expression 'suppression of facts' provided in proviso to Section 11A(1) is to be interpreted strictly because it has been used in company of such strong words as fraud, collusion or wilful default. The above view of the Apex Court was also repeated in the case of Kaur and Singh v. C.C.E., New Delhi reported in 1997 (94) E.L.T. 289. Ld. Counsel submits that in the case of C.C.E. v. HMM Ltd. reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that assembly of individual cells into Lead Acid Battery amounts to manufacture; that battery is a new item and was different from cells. He, therefore, submits that batteries were being manufactured by the appellant. 11.Regarding the battery being an accessory, ld. DR submits that it was not an accessory but was an essential part of the UPS system. He submits that battery has been shown as a component in the HSN Notes, He submits that there are decisions of the Apex Court in which it has been held that since the Central Excise Tariff Act is being based on HSN nomenclature, therefore, HSN should be given due importance. Ld. DR, therefore, submits that on merits, the appellants have no case. 12.On limitation ld. DR submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant. We, therefore, proceeds to examine the SCN whether the allegation for purpose of extention of time under proviso to Section 11A(1) of the Central Excise Act is met fully or not. In the SCN in para 9, it has been alleged "from the above it appears that the noticees have been availing duty on the value of batteries being cleared as part of UPS system by them. The party cleared batteries valued at Rs. 9,07,600 during 20-3-1992 to 13-7-1995. (It maybe stated that there is a clerical mistake in this, the period should be from 20-3-1992 to 13-7-1995). As a part of UPS without including the value of the same in the assessable value of the said UPS and thus evaded duty of Rs. 98,838.50 detailed as per Annexure 'A' which appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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