Customs, Excise and Gold Tribunal - Calcutta
M/S Marsons Fan Indus. vs Cce, Calcutta-I on 27 April, 2001
Equivalent citations: 2001(138)ELT117(TRI-KOLKATA)
ORDER
Smt. Archana Wadhwa
1. The impugned order passed by the Commissioner of Central Excise, Calcutta in de novo proceedings confirms the demand of duty of Rs. 5,94,320.52 in respect of stators and rotors manufactured by the appellants and cleared without payment of duty during the period from January 1983 to March 1984.
2. The appellants are engaged in the manufacture of electric fans for which they hold a valid licence. The appellants were also undertaking the job work for manufacture of rotors and stators for other fan manufacturers. For the said purpose they received raw materials such as lamination, winding wire etc. form their respective customers and did the processing work like winding, end cutting, coil setting etc. Based upon the securtiny of the appellants records, Revenue issued a show cause notice on 7.2.85 to the appellants demanding duty on the rotors and stators falling under Erstwhile Tariff Item 30D of Central Excise Tariff. The said show cause notice was adjudicated by the Commissioner confirming demand of duty and imposing penalty upon the appellants. The order so passed by the Commissioner was challenged by the appellants before the Tribunal and it was contended that the invoices on the basis of which duty has been confirmed against them were not supplied to the appellants and as such there was violation of principles of natural justice. Accordingly the Tribunal vide its order dt. 30.9.97 remanded the matter to the Commissioner for fresh adjudication after supplying the copies of the relied upon invoices. while doing so it was observed by the Tribunal in para 3 of the order that - "the appellants' contention that copies of the invoices forming the basis of the demand have not been furnished, has not been controverted/rebutted by the Revenue". It was in these circumstances that the matter was remanded.
3. The Commissioner in the remand proceedings observed that during the course of personal hearing the appellants have agreed that no records or documents were recovered from them and the invoices in question were produced by the appellants during the course of the personal hearing. Accordingly by referring to the said invoices as also after considering the submissions made by the appellants the Commissioner passed the impugned order confirming demand of duty and imposing penalty.
4. Shri N.C. Roychowdhury, ld.sr.adv. along with Shri P. Mukherjee, ld.adv. has appeared before us. The appellants main contention is that there was a specific direction by the Tribunal to supply the copies of the invoices to the appellants, which direction has not been complied with by the adjudicating authority. As such there has been a gross mis-carriage of justice. He further submits that the adjudicating authority has wrongly concluded that the appellants are engaged in the manufacture of stators and rotors. In fact the processes undertaken by them on job work basis did not result into emergence of finished forms, unfit for marketing. As such it cannot be said that the appellants had manufactured the said product and has cleared the same without payment of duty. The impugned order has also been assailed on the point of limitation.
5. Countering the arguments Shri A.K. Chattopadhyay, ld. JDR draws our attention to the reasoning of the adjudicating authority. He submits that the appellants have admitted before the adjudicating authority that the invoices were not taken into possession by the Revenue and in fact some of the invoices showing the clearances of stators and rotors were produced by the appellants before the adjudicating officer, as recorded by him. As regards the merits of the case he submits that the processes undertaken by the appellants definitely amounts to emergence of a new product having different name, use and character and it cannot be said that no manufacturing activities was involved. As regards limitation he submits that the appellants had not followed the central excise procedure and no intimation as regards manufacture of the rotors and stator was given to the Revenue. In these circumstances he justifies the Revenue's stand in invoking to longer period of limitation.
6. We have considered the submission made from both the sides. Shri N.C. Roychowdhury, ld.sr.adv. has strongly argued that the adjudicating authority was bound by the directions of the Tribunal to supply them the copies of the original invoices on the basis of which show cause notice was issued. However it is seen that the Tribunal had earlier remanded the matter in view of the fact that the appellants contention as regards the non-supply of invoices was not rebutted by the Revenue at that point of time. From the impugned order we find that the appellants have categorically admitted before the adjudicating authority that the records were not obtained by any visiting central excise officer. they could also not show as to whether the appellants own invoices were detailed by the Revenue. In fact we find that a reference has been made to the copies of the invoices produced at the time of personal hearing. In these circumstances we hold that the non-supply of the original invoices, copies of which are in any case available with the appellants, has not invalidated the impugned order.
7. As regards the appellants contention that the activities under taken by them does not result in manufacture of complete rotors and stators, we find that rotors and stators are specified items under the Erstwhile Tariff Item 30D of Central Excise Tariff. The appellants have received laminations and winding wires from their customer sand have undertaken the work of winding, end cutting, coil setting, core processing and providing of aluminium quoting etc. Definitely the end product which has emerged after all these processes is no longer laminations and winding wire separately i.e. raw materials from which the appellants stated their processes. Their invoices also described the goods as stators and rotors. The appellants have made no effort to show as to what more processes are required to be undertaken for converting the goods to the finished rotors and stators. It is also not their contention that their customers have further undertaken certain jobs on the so called unfinished stators and rotors so as to convert the same into finished stators and rotors. They have also not shown that their customers have ultimately paid the duty on the said product. As such we uphold the finding of the adjudicating authority that the appellants had been indulging into manufacture of stators and rotors and clearing the same without payment of duty.
8. It is also on record that though the appellants were clearing said stators and rotors under the cover of commercial invoices, they had not informed the department about the same. No classification or price list was filed by them and the removal of the said item was not being reflected by them in statutory records, returns etc. The appellants have also not placed any material on record to show that they were under a bona fide impression that said stators and rotors and not excisable goods. In fact being manufacturer of electric fans, the appellants would be fully aware of he excitability of the said stators and rotors. As such we find that the longer period of limitation has rightly been invoked by the adjudicating authority.
9. In view of the foregoing we do not find any merits in the appeal and rejected the same.
(Pronounced)