TMI Blog2004 (5) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... d 16-3-1995 the appellant cleared the goods. The effective rate of duty for tyres for two wheeled motor vehicles known as mopeds was Rs. 29/- and for two wheel motor vehicles other than mopeds is Rs. 40/- under Notification 41/89 as amended. The period of dispute is 1-3-1992 to 28-3-1993 and 1-5-1993 to 30-11-1996. The contention of the department is that the appellant cleared two wheeled motor vehicle tyres meant for motorcycles claiming them to be moped tyres. The show cause notice is dated 13-3-1997 invoking the larger period of limitation alleging that the appellant misdeclared the goods and suppressed the fact that the tyres are meant for motorcycle. 2.The Commissioner in the impugned order confirmed the duty demand for Rs. 35,56,897 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be a ground for denying the concessional rate when they have manufactured only moped tyres. The appellants Referred to the information supplied by the excise executive of Kinetic Engineering Ltd. in regard to the vehicles manufactured by them and averred that even the company has clearly described their vehicles as Mopeds eve when such vehicles have kick start facility. Admittedly the tyres cleared by the appellant were used in the above type of vehicles which are described moped by the manufacturers of the vehicles. It is further contended that the tyres cleared by the appellant were eligible for the concessional rate meant for moped tyres. 4.On issue of limitation it is contended that the unit was under physical control upto 31-11-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that once the department acquired knowledge it cannot claim suppression of the facts w.e.f. that date. The appellants' contention is that after the department recorded the statement of K. Haridevan they were fully aware as to the use the tyres which were cleared by the appellants were being used in vehicles alleged to be other than mopeds. Even after acquiring this knowledge the department accorded approval to the classification lists. In such a situation invoking the larger period of limitation is not permissible. They pleaded that the show cause notice is time-barred. 6.In regard to penalty imposed under Section 11AC it was argued that the Tribunal in the case of Punjab Recorders Ltd. [2001 (132) E.L.T. 41 (T) = 2001 (45) RLT 22] and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows "tyres for two wheeled motor vehicles known as mopeds". The appellant clearly marked the tyres cleared by him "moped and maximum speed 50 Kms. Per hr." If such tyres are used for vehicle other than mopeds by any one, the appellants cannot be faulted for such mis-use. For instance if there are two rates of duties, one for ladies shirts and another for men's shirts the former lower than the latter manufacturer cannot be blamed if men were to use women's shirts when manufacturer had clearly indicated that the shirts were meant for women. In the instant case the appellant had clearly marked the tyres as "moped" tyres. The allegation against the appellant in this case is based on the mis-use of tyres by the buyer. 10.Insofar as the content ..... X X X X Extracts X X X X X X X X Extracts X X X X
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