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1. The appellants are engaged in the manufacture of 'Pump Refuelling' which are used for dispensing liquid fuels contained in barrels into fuel tanks of vehicles. The pump consists of a high speed DC motor operated by a 24 Volts DC Battery. The appellants cleared pumps valued Rs. 3,67,500/-, Rs. 17,46,000/- and Rs. 10,28,000/- respectively during the period 1981-82,1982-83 and 1983-84 upto 3-11-1983. The appellants were served with a show cause notice by the Assistant Collector asking them to show cause as to why duty amounting to Rs. 53,392-50 should not be recovered from them on the clearances of Power Driven Pumps during the year 1982-83 and 1983-84 (upto 3-11-83) in excess of the limit of Rs. 7.5 lakhs for duty free clearances during any financial year under Notification No. 80/80-C.E., dated 16-9-1980. In their reply to the show cause notice the appellants denied that pumps refuelling manufactured by them were assessable under Tariff Item 30-A as power driven pumps. They contended that their goods being classifiable under Tariff Item 68 no duty was recoverable for them during the years 1982-83 and 1983-84 since their clearances were not in excess of the exemption limit of Rs. 30 lakhs in respect of goods falling under Tariff Item 68. However, by the impugned order dated 22-9-1984 the Additional Collector confirmed the demand for duty amounting to Rs. 53,392-50 and also imposed a penalty of Rs. 20,000/- under Rule 173Q on the appellants.

(i) Raj Nigam v. CCE [1989 (42) ELT 618]
(ii) New Polymer Industries v. CCE, Baroda [1991 (52) ELT 145 (Tribunal)]
(iii) Golden Press v. Dy . Collector of Central Excise, Hyderabad and Ors. [1987 (27) ELT 273 (A.P.)]
(iv) State of Tamil Nadu v. Mahi Traders [1989 (40) ELT 266 (S.C.)]
(v) CCE, Guntur v. Andhra Sugar Ltd. [1988 (38) ELT 564 (S.C.)]
(vi) CCE v. Park Exports (P) Ltd. [1988 (38) ELT 741 (SC)]

3. On behalf of the Department the learned JDR Shri M.S. Arora contended that there was no force in the appellants' argument that their product was not a power operated pump. He stated that pumps manufactured by the appellants being worked by 24 Volt battery had to be deemed as power operated. He added that the clarification issued by the Board in 1969 that pumps other than those used for irrigation were not to be charged to duty under Tariff Item 30-A was superseded by Tariff Advice No. 122 dated 10-11-1981 which clarified that pumps driven by external source of power for handling liquids were classifiable under Tariff Item 30-A. Shri Arora contended that after the issue of the Tariff Advice in case the appellants had any doubt they should have sought clarification from the Department. He stated that from the finding that the apel-lants did not obtain a licence and also failed to file a classification list, it follows that they had suppressed facts with the intent of evading duty. In support of the points made by him Shri Arora quoted the following case law :-

5. We have gone through the ex-records of the case and considered the submission made on behalf of both the sides. It is seen that the points that arise for consideration in this case are :-

(i) Whether the fuel dispensing pumps manufactured by the appellants could be deemed as power driven pumps classifiable under Item 30-A of the Central Excise Tariff.
(ii) Whether the Board's instructions No. B7/6/69-CX-I dated 23-4-1969 and Patna Collectorate Trade Notice No. 25/2/69 dated 28-3-1969 incorporating Board's instructions that fuel dispensing pumps were not chargeable to duty under Central Excise Tariff Item 30A could be deemed as binding on the adjudicating authority.

9. In regard to the question whether having regard to the facts and circumstances of this case it was permissible for the Department to invoke the extended period of five years under the proviso to Section 11A of the Central Excises & Salt Act, 1944 we find that the appellants' case is that they had not paid duty on the clearances in excess of the exemption limit of Rs. 7.5 lakhs on the bona fide belief that the refuelling pumps manufactured by them were not classifiable under Item 30A of the Central Excise Tariff. They have contended that there can be no finding against them of wilful suppression of facts or mis-statement with the intent of evading duty since even in accordance with the Board's instructions dated 23-4-1969 conveyed to the trade through Patna Collectorate Public Notice dated 28th March, 1969 pumps designed for dispensing fuel were not chargeable to duty under Item 30-A of the Tariff. On the other hand the learned JDR has contended on behalf of the Department that it was permissible for the adjudicating authority to invoke the extended period for the recovery of short levy since the appellants failed to obtain a Central Excise licence and continued to clear their goods without payment of duty even after 1981 when all doubts about the dutiability of power driven pumps designed for handling liquids under Item 30A of the Tariff were put to rest with the issue of Board's Tariff Advice No. 122 dated 10-11-1981. We are, however, not impressed with the arguments of the learned JDR since a tariff advice is a departmental circular issued for the guidance of the officers. It appears that even after the issue of the Tariff Advice there was ample scope for doubt in the mind of the appellants about the dutiability of various types of power operated pumps in view of the circulars issued by the Board & various Collectorates on this subject and on this account they failed to take out a licence and pay the duty. Under these circumstances we are of the view that as held by the Supreme Court in the case of Padmini Products v. Collector of Central Excise [1989(43) ELT195 (SC)] the appellants cannot be accused of wilful mis-statement or suppression of facts with the intent to evade duty. The relevant extracts of the judgment are reproduced below :-