Customs, Excise and Gold Tribunal - Delhi
C.C.E. vs Densons Pultroteknik Paonta Sahib on 18 January, 1995
Equivalent citations: 1995(78)ELT116(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. This ROM application is against the Final Order No. 446-451/93-B1, dated 17/27-12-1993 passed by the Tribunal. The appellants are aggrieved with the main order and have pointed out that there were six issues in the appeals, which are noted as follows :
(i) Can Asstt. Collector review?
(ii) Can CLs be changed retrospectively?
(iii) Whether products are-classifiable under 8547.00 or 3926.90?
(iv) Can clearances of 2 units be clubbed?
(v) Is demand on RT 12s maintainable?
(vi) Exact value of clearances even if clubbed.
2. On the first question, the appellants have submitted that the classification list had been approved by the department and they could not be reviewed and therefore, the power of review must be conferred expressly or by necessary implication by the provisions of statute and the Central Excises & Salt Act and the Rules made thereunder. On the second issue i.e. whether classification lists can be challenged retrospectively, they point out that the Tribunal has committed a mistake on the issue also. Citing several judgments, the appellants have submitted that the Tribunal has made a mistake in relying on the judgment of the Bombay High Court as rendered in the case of X.L. Telecom Pvt. Ltd. v. Union of India as reported in 1994 (70) E.L.T. 530 (Bom.) and has held that the item Epoxy Cast components are rightly classifiable under Heading 85.47. Therefore, they submit that the judgment of Hon'ble Bombay High Court was in a different context on a different product and the Bench had not distinguished the same in the light of the samples shown, Literature submitted and hence this error is required to be corrected. On the third issue pertaining to the correct classification also, they submit that they had relied on the judgment rendered in the case of CCE v. Denson Engineers as reported in 1991 (52) E.L.T. 296 (Tribunal), in a different context and not in the context of classification of Epoxy cast components that as another product was not excisable, the value of the same cannot be taken into account for computing the aggregate value of the clearances. Therefore, they submitted that an error has further crept in the Final Order in classifying the product under 85.47 on the basis of Hon'ble Bombay High Court judgment. They submit that the Bombay High Court judgment was a case of Import and not of manufacture and the item therein known as "Heat shrinkable Material', and not pertaining to the item in question. On the 4th issue, they have submitted that the clearance of two units cannot be clubbed and that the Tribunal has committed a mistake even on this ground. On the 5th issue also they submit that the Tribunal has committed a mistake in holding that there is suppression of facts, while their case is that there was no suppression of facts as the goods had been cleared against approved classification lists after following due process of law and as per settled law, the demand, if any, cannot be raised on R.T. 12s by the Superintendent and that too for extended period. On the last ground, they also submit that the Tribunal has committed an error with regard to the valuation of clearances made by them.
3. We have heard Shri J.S. Agarwal, ld. Advocate for the appellant and Shri Somesh Arora, ld. JDR for the Revenue. Ld. Advocate has pointed out the mistake according to him in the order as per the grounds made out by him in the application.
4. Ld. JDR submitted that the R.T.12s were finalised and assessed after the impugned order has passed and, therefore, there was no ROM on this aspect. He submitted that the assessment order dated 15-2-1990 passed by the Superintendent is a considered order and therefore, there was no need to issue a show cause notice after passing of the impugned order. He submitted that the Tribunal has gone into each issue and given a well considered and reasoned judgment. The Tribunal has noted the Bombay High Court's judgment and has found the same to be fully applicable to the facts of the case. Therefore, the order being well reasoned and covering all the issues, it cannot be said that there are apparent mistakes requiring rectification.
5. We have carefully considered the submissions made by both the sides and have perused the records. It is seen that the issues raised by the appellants have been listed out in the main order, the Bench has considered the submissions made by the appellants on each of the grounds and issues raised. After due consideration of these issues in great detail, the Tribunal had passed the order. The Tribunal had also noted the Literature as well as scientific information available from Kirk-Othmer Encyclopedia of Chemical Technology under heading Insulation (Electric) at page 8 of the order. Thereafter, the Tribunal has given an independent finding that the goods are classifiable under Heading 85.47. The Tribunal had also gone through the Explanatory Note to HSN before coming to the conclusion on the issue of classification of the product. The judgment pertaining to CCE v. Denson Engineers as reported in 1991 (52) E.L.T. 296 (Tribunal) had also been examined. Besides the ratio cited by the appellants in the case of Partap Rajasthan Copper Foils and Laminates Ltd. v. CCE as reported in 1989 (44) E.L.T. 775 and thereafter has dearly given a finding that these rulings do not be applied squarely to the facts of the present case, as it does not involve the question of levy of duty on the Epoxy Resin mixed with fillers but on the Cast Components made from such epoxy Resin mixed with fillers etc. The Tribunal had noted that it is not the Department's case that 'Insulating fittings' are to be assessed as "Insulators". After noting the findings, the Tribunal has also referred to the Bombay High Court's judgment. Therefore, it is clear that the order of the Tribunal was not based only on the judgment of the Hon'ble Bombay High Court but had come to a independent findings on examination of scientific information. Therefore, it cannot be said that there is an error apparent requiring rectification on the aspect pertaining to classification.
6. On the issue of clubbing the two units, the Tribunal had given the findings on the basis of Notification No. 175/86-C.E. i.e. "by a manufacturer from one or more factories". In view of these words in the Notification, the Tribunal had held on the basis of admitted facts that the two units are admittedly owned by M/s. Yamuna Gases Ltd.; this is a case of clearances of excisable goods from one or more factories by or on behalf of the same manufacturer M/s. Yamuna Gases Ltd. In that event, the Tribunal decision in the case of Kinjal Electricals (P) Ltd., 1991 (51) E.L.T. 543 (Tri.) relied upon by the ld. Advocate for the assessees is not applicable to the facts of the present case. Therefore, we also notice that there is no mistake in the interpretation of the Notification to club the clearances. On the issue pertaining to the Assistant Collector has no powers be reviewed his own order as held by the Collector (Appeals), the Tribunal has accepted the JDR's contention that the issue is covered by the judgment of Delhi High Court as in the case of Bawa Potteries v. UOI and Anr. reported in 1981 (8) E.L.T. 114. On this point also, we notice that there is no error apparent on record requiring rectification.
7. As regards the last question considered by the Tribunal pertaining to the effective date of the changed classification, it is noticed that the Tribunal has given a reasoned order and has held "if these goods were wrongly held as exempted, in the past, though the recovery of duty short levied may be affected due to the provisions of Section 11A, their value cannot be excluded, as in the view of the Bombay High Court decision (supra) such goods were clearly dutiable." Therefore, we notice that there is no error apparent on this issue also. On the question of demands being time barred also the Tribunal has been dealt with this issue - and has given a finding that the assessee had not declared that the "Epoxy Cast Components" were in fact 'insulating fittings' and therefore held that larger period is rightly invokable. In that view of the matter, we also notice that there is no error apparent on this question also. On the last issue as to whether availing of Modvat by one unit will disentitle the second unit from availing of the exemption under Notification No. 175/86-C.E., dated 1-3-1986. On this question also, the Tribunal has given a considered finding, therefore, we do not see that the Tribunal had erred on facts or on law on any of the questions raised before them. There is no error apparent and therefore, this application is required to be rejected, and we order accordingly.