Customs, Excise and Gold Tribunal - Bangalore
Cce, Bangalore vs M/S. R.S. Industries, Bangalore on 23 January, 2001
ORDER
Shri S.S.Sekhon.
1. This appeal has been filed by the Revenue on the following findings of the Collector.
"The next question is whether the duty is chargeable on the wires so drawn and given the copper coating when both the alloy steel wires and the copper coated alloy steel wires fall under the same tariff sub item. The Advocate has again relied upon a few case laws and submitted that no duty is chargeable when the goods fall under the same tariff item. In state of Tamil Nadu Vs. Pyarelal Malhotra reported in 1998 ELT 1582 (SC) the Hon'ble Supreme Court have held that it is necessary to determine whether the goods ceased to be goods of one taxable description and have become those of a commercially different category and description in order to attract the levy. Even though this judgement is under the Sales Tax law, yet the underlying principle can be taken note of. Similarly, the CEGAT Special Bench 'C', New Delhi in Golden Paper Udyog (P) Ltd., Faridabad Vs. Collector of Central Excise, Delhi 1983 ELT 1123 (CEGAT) have held that there cannot be 2 manufacturers attracting 2 levies at 2 different stages under the same sub-item. Similarly, the Special Bench 'B'? CEGAT New Delhi in the case of Swastic Packaging, Bombay Vs. Collector of Central Excise, Bombay 1986 (23) ELT 217(Tribunal) have ruled that duty can be charged only at one stage and not again when the goods after processes fall under the same sub-item. The judgements reported in 1987 (29) ELT 77 (Tribunal) and 1987 (29) ELT 213 (Tribunal) also point out to the same effect. The various judicial fora have held that when the goods even after process fall under the same tariff item as the goods from which they are processed then no duty is again chargeable on the processed goods. It is seen from the records in this case that the raw material i.e. alloy steel wire has been classified under Chapter sub-heading 7229.90 and the copper coated wire also fall under the same tariff sub-item. In view of the various case laws to which I have referred to earlier, no duty can be charged again on the processed goods. The Advocate's contentions therefore have force and merit acceptance. Accordingly, I drop further proceedings in this case".
2. The respondents are manufacturers of copper coated alloyed steel wire falling under Chapter Heading 7229.90 of the CET Act, on which they have not paid duty but availed the benefit of turn over of small scale exemption upto Rs.15/20 lakhs. Notfn.No.175/86 did not indicate hearing 7229.90 to be eligible for this exemption. The Commissioner up held the process undertake by the Respondents to be "manufacture", however he did not confirm the duty on the grounds extracted supra. Revenue has relied on the decision in the Hon'ble Supreme Court in the case of Laminated Packings (P) Ltd. 1990 (49) ELT 326 (SC) and has differentiated the decisions relied on by the learned Collector in the Order.
3. We have considered the submissions, made by the learned D.R. Shri. Thomas George and Advocate Shri. Raghu for the respondents, and after taking the submissions into consideration we find that
a) Supreme Court in the case of Laminated Packings (P) Ltd., reported in 1990 (49) ELT 326 (SC) has held as under:
" The further contention urged on behalf of the appellant that the goods belong to the same entry is also not relevant because even if the goods belong to the same entry, the goods are different identifiable goods, known as such in the market. If that is so, the manufacture occurs and if manufacture takes place, it is dutiable. 'Manufacture' is bringing into being goods as known in the excise laws, that is to say, known in the market having distinct, separate and identifiable function. On this score, in our opinion, there is sufficient evidence. If that is the position, then the appellant was liable to pay duty, We are, therefore, clearly of the opinion that the order of the CEGAT impugned in this appeal does not contain any error. The appeal, therefore, fails and is accordingly dismissed".
In this view of this matter, the order of no Underlining Supplied charging of duty again under safe Tariff term as held by the adjudicator cannot be upheld.
b) We have considered the submissions of Advocate Shri. Raghu, who has challenged the classification of the entity under 7229.90 and has submitted the same has to be correctly classified. The other contention of the Respondents regarding time bar of the demand has to be adjudicated upon.
The order is silent on the classification and the time bar issue.
4. In view of our findings, we would set aside the order and remand it back to the Commissioner for re-determination of all the issues denovo.
5. Appeal allowed as Remand.
(Pronounced and dictated in the Open Court).