Customs, Excise and Gold Tribunal - Calcutta
M/S. Vinar Systems Ltd. vs Cce, Calcutta-Ii on 4 January, 2001
Equivalent citations: 2001(131)ELT372(TRI-KOLKATA)
ORDER
Smt. Archana Wadhwa.
1. The prayer in the application is for dispensing with the pre-condition of deposit of duty of Rs.11,62,500/- and an equivalent amount of personal penalty imposed upon the applicant-appellant on the ground that the conveyers system manufactures by them and cleared on payment of duty by classifying the same under heading 8428.00 was to attract duty as parts of conveyers classifiable under heading 8431.00.
2. Arguing on the application Shri S.K.Bagaria, ld.adv. submits that the appellants were placed with a purchase order by M/s. Tata Refractories Ltd.for supply of various mill house equipments and accessories for the purposes of instalment of mill house at their premises, The appellants manufactured various parts of conveyors in their factory and cleared the same in CKD condition by payment of duty on the said conveyors. The other equipment were bought by them from the market and supplied directly to M/s. Tata Refractories Ltd.. The Revenue raised demand of duty against them on the alleged ground that the various parts of conveyors cleared by them in knocked down condition have to be treated as parts of mill house equipments and cannot be considered as a complete conveyor system. Shri Bagaria argues that the issue is squarely covered in their favour by the earlier decision of the Tribunal reported in 1999(107) ELT 774(T) in the case of Viswa Industrial Co.(P) Ltd. v. CCE, Calcutta whereas under similar set of facts and circumstances, the various parts of the conveyor systems manufactured by the assessee and cleared in SKD or CKD condition were held to be complete conveyor system. Similarly in another decision in the case of CCE, Delhi v. BHP Engineers-2000(40)RLT 791(CEGAT), it has been held that parts of conveyor, against an order for a conveyor, cleared under different gate passes over a period of time have to be classified as conveyor and not as parts of conveyor. As such he submits that the abjudicating authority has totally erred in classifying the various parts cleared from their factory as parts of conveyor and not as a full conveyor system.
3. Shri Bagaria also assails the order of the Commissioner on the ground of limitation. The period involved in the present appeal is from August 1993 to January 1994 and the show cause notice was issued on 6.3.96. The appellants, submits the ld.adv., had been filing the classification lists and price lists etc.. The only ground for invoking the extended period of limitation against the appellant is that in their classification list the appellants did not declare that they would be clearing the various parts of the conveyor system in CKD condition. He submits that earlier also the Revenue has raised similar objections and the Asst.Commissioner has passed the order on the same issue. As such though a specific declaration was not made in the classification list, the entire facts were in the knowledge of the Revenue. As such he submits that there was no suppression or misstatement on their part with intent to evade duty so as to justify invocatioin of longer period of limitation.
4. Shri V.K.Chaturvedi, ld.SDR appeared on behalf of the Revenue and draws our attention to the observations made by the ld.adjudicating authority. He specifically draws our attention to the Tribunal's decision in case of Space Age Engg.Projects-1995(78)ELT 544 wherein it was observed that the conveyor parts manufactured at the assessees' factory and removed to site of erection cannot be called collection of parts of the conveyor system. As regards limitation Shri Chaturvedi submits that returns filed by the appellants are still pending assessments and as such the question of limitation does not arise.
5. In his rejoinder Shri Bagaria submits that in the case relied upon by the ld.adjudicating authority only some of the parts were being manufactured by the assessee and were being cleared as such. It was in those circumstances, it was held by the Tribunal only parts were being manufactured and not the full conveyor system. He further submits that in the absence of any order for provisional assessment, mere pendency of assessments of the returns filed by the appellants will not make the assessments provisional so as to invoke the longer period of limitation as held by the larger Bench in the case reported in (38)RLT 353.
6. After giving our careful consideration to the submissions made by both the sides we prima facie agree with the submission of the ld.adv.. The two decisions relied upon by the ld.adv. are fully applicable to the facts and circumstances of the case. We also prima facie find favour with the submission of the appellant that the show cause notice having been raised in the year 1996 for the period 1993 to January 1994 is prima facie barred by limitation. Accordingly keeping in view all the above factors we allow the stay petition unconditionally. Main appeal is also fixed on 5.2.2001.
Dictated in the court.