Customs, Excise and Gold Tribunal - Mumbai
Luner Plastic And Engg. Corpn. vs Cce on 23 March, 2000
Equivalent citations: 2000(93)ECR684(TRI.-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. These two appeals one by the assessee and other in the form of application under (Section) 35E(2) of the Act by the Collector are against the order of the Collector. By this order the Collector has held that the assessee manufactured various articles, classification of which has been done by him and has held the goods liable to duty invoking the extended period under proviso to Section 11A of the Act and imposed penalty of Rs. 30,000/- under (Rule) 173Q. He has held that the assessee would be entitled to the benefit of notification 175/86 the value for this purpose being computed by adding together the value of the goods cleared in the factory on Mumbai, the subject matter of the adjudication, and its other factory at Surat and left the quantification of duty to be determined by the assessment Collector.
2. The assessee is absent and unrepresented despite notice. We have heard the departmental representative and read the relevant papers.
3. The department's application questions the extension of notification 175/86 on the ground that the factory at Bombay was not registered, as required in paragraph 4 of 175/86 as a small scale unit undertaking registered with the Director of Industries. No cross objection to this application appears to have been filed. The Collector has said that since the factory of the assessee at Surat was registered as a SSI (presumably with the appropriate authority in the Government of Gujarat) benefit was available for clearances to one or more factories of the appellant. Paragraph 4 of the notification specifically provides exemption contained in the notification only to "factory which is an undertaking registered with the Director of Industries in a state...." The assessee's Surat factory was not so registered; that in any case is not the claim before us. We are not able to find anything in the notification, which supports the view taken by the Collector.
4. Paragraph 3 of the notification no doubt refers to clearances by the manufacturers from one or more factory. Read with paragraph 4 each of these factories would have to be registered with appropriate authority, the Director of Industries in this case. It is relevant to note that the register by the director of factory, which is specified in the certificate, issued by him. Accordingly the assessee was not entitled to any terms of paragraph 4 to the benefit of notification. No ground has been made out that it was covered by the proviso to paragraph 4. Accordingly we accept the contention in the appeal and hold that the benefit of notification was not available.
5. We now turn to the assessee's appeal. The first ground in the appeal is that cross examination of Tilak, the Superintendent of Central Excise was not granted. The appeal does not indicate why Tilak's cross examination was necessary or why by its absence, the appellant would have caused prejudice. We are unable to accept this.
6. The next ground is that the appellant did not manufacture any goods in the factory but merely carried out repair, finishing and assembling operations - the nature of this operation is not specified. However, it is clear that many operations of assembly, resulting in the emergence of a fresh product, amount to manufacture. Apart from this, the appellant's partner K.J. Jacob had admitted in his statement the appellant manufactures goods in its factory at Bombay. It is not contended that Jacob's statement was retracted at any time. The evidence put forth by the appellant before the Collector was a declaration by the landlord of the appellant's premises that it had no machinery installed, a letter of the Bombay Electric Supply Transport comments that the appellant did not have any industrial electric connection and copies of the electric bills to show low electricity consumption. It has not been established that electricity was not used in the manufacture of the goods and they could not be manufactured with some other kind of power. The landlord's statement is not sufficient evidence to sustain the conclusion that manufacture did not take place. It has indicated the nature of the assembly or required operation carried out not specified. We therefore do not find sufficient ground to interfere with this finding.
7. It would then follow the extended period was clearly applicable. The appellant had not indicated to the department the fact of manufacture or filed the required documents as provided by law.
8. The Collector had classified a large number of goods under heading 3926.90 of the Tariff with the benefit of notification 53/88. This is not challenged in the appeal. However the appeal challenges classification of other goods which have been classified either under heading 85.38 or 85.40. The reason given by the Collector for classification in his view, of the appearance and shape are not part of which was the claim before him. We are therefore of the view the classification of the goods are to be determined afresh. We however confirm the penalty imposition for the reason that duty was not paid on them. Accordingly we pass the following order.
9. Appeal E/5920/92-C is allowed. E/559/91 allowed in part i.e. to the extent that classification of goods other than those under heading 3926.90 is set aside and classification to be re-determined according to law and thereafter duty quantified.
(Dictated in Court).