Customs, Excise and Gold Tribunal - Calcutta
Rana Udyog vs Cce on 29 January, 2004
ORDER
Archana Wadhwa, (J.), Member
1. After Dispensing with the condition of predeposit of duty and penalty we take up the appeal itself inasmuch as we find that the impugned order of the Commissioner has been passed in gross violation of principles of natural justice as else without taking into consideration the earlier orders of this Tribunal in the matter of classification of rolls as also without effectively considering the appellant's plea that the entire duty is barred by limitation.
2. As regards the personal hearing we find that the date was fixed on 31.3.2003. The appellants vide their letter dt. 28.3.2003 filed in the Officer of the Commissioner on 31.3.2003 prayed fro adjournment inasmuch as the appellant's advocate was busy before CEGAT. However, the Commissioner has not taken note of the said request for adjournment and has proceeded to decide the matter, We also note that the impugned order has been passed after a period of two months from the date of hearing fixed by him during which period, the Commissioner could have granted another hearing opportunity to the appellant/ As such we are of the opinion that the impugned order is required to be set aside on this ground alone.
3. As regards the merits of the case we find that the appellant filed a declaration effective from 1.4.96 giving description of the various items manufactured by them claiming the classification of the same under heading 8455.10. They were issued a show cause notice on 31.12.98 raising demand of duty on the alleged ground that the appellant's products were correctly classifiable under heading 8455.90. As such demand of duty for the period 16.3.96 to February 1997 was raised against them. The appellants challenged the above proposal in the notice on merits as also on the point of limitation. The Commissioner did not accept their contention and confirmed the demand along with the imposition of personal penalty.
4. After hearing the appellant duty represented by Shri B.K. Munshi, Id. Consultant for the appellants and Shri N.K. Mishra, Id. JDR for the Revenue we find that though there were number of items listed in the declaration filed by the appellant on 1.4.96, the Commissioner while adjudicating the case only discusses rolls and decides that the same are to be treated as part of a rolling mill. We do not find any discussion as regards the functions of the other items claimed to be classifiable under heading 8455.10. Even as regards the rolls we find that the Tribunal has already taken a view in the case of Bharat Roll Industries Pvt. Ltd. Order No. A-1324-1327/Cal/2000 dt. 23.8.2000 holding that the rolls are classifiable under heading 8455.10. The above decision was given by following the earlier order of the Tribunal in the case of Jamshedpur Engg. & Machine Mfg. Co. Vs. CCE, Jamshedpur. As such the Commissioner's classification of rolls, in any case is against the above decision of the Tribunal. About the other products, we have already noticed that he has not discussed the same in his impugned order.
5. As regards limitation also we find that the appellant has given correct description of the goods in their declaration filed w.e.f. 1.4.96.The show cause notice in question was issued on 31.12.98 i.e. after the normal period of limitation of six months. The Commissioner has invoked the longer period by observing that - "Regarding time limit, I am of the opinion that longer time is correctly invokable in the instant case because the assessee's non-disclosure of the fact the subject goods were parts and were cleared only for the use thereof in the rolling mills as replacement of the worn out ones, amounts to wilful suppression of fact and mis-declaration thereof".
6. We find that the Hon'ble Supreme Court in the case of Densons Pultretaknik Vs. Commissioner of Central Excise, 2003-TAXINDIAONLINE-46-SC-CX, has held that the classification claimed by the appellants under a particular heading does not amount to suppression of facts and extended period of limitation is not invocable. It is not the Revenue's case that the description of the goods manufactured by the appellant was not given correctly in their declaration. Merely claiming of the classification under heading 8455.10, by itself would not amount to suppression of facts or misstatement on the part of the assessee with intent to evade payment of duty. As such we are of the view that the appellants also has a good case on limitation.
7. Inasmuch as the matter is being remanded by us to the Commissioner on the finding of the impugned order having been passed in violation of principles of natural justice. We direct him to re-decide the matter in the light of the observations made by us in the preceding paragraphs on the point of limitation as also on merits. Appeal is thus allowed by way of remand.
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