1990 (3) TMI 76 - HC - Central Excise

Summary

Issues Involved:
1. Validity of the Order dated 7th October 1985 u/s 35A(2) of the Central Excises and Salt Act, 1944.
2. Validity of the Order dated 8th August 1989 by the Customs, Excise and Gold Control Appellate Tribunal.

Summary:

1. Validity of the Order dated 7th October 1985 u/s 35A(2) of the Central Excises and Salt Act, 1944:
The Petitioners, manufacturers of rubber products known as "aprons" and "cots", challenged the Order made by Respondent No. 1 (Collector of Central Excise) on 7th October 1985, which reversed the Order of Respondent No. 2 (Assistant Collector of Central Excise) dated 21st May 1981. The Respondent No. 1 held that aprons and cots are excisable under the residuary Tariff Item No. 68 and are not exempt from excise duty under Notification No. 197/67 dated 29th August 1967. The Court found that aprons and cots are components of textile machinery and do not perform the function of conveying air, gas, or fluids. They are the result of converting piping and tubing into smaller units known as "Aprons" and "Cots" within the Petitioners' factory, thus falling within the exemption granted by Notification No. 197/67. Consequently, the Order of the Collector of Central Excise dated 7th October 1985 was set aside.

2. Validity of the Order dated 8th August 1989 by the Customs, Excise and Gold Control Appellate Tribunal:
The Petitioners also challenged the Order of the Tribunal dated 8th August 1989, which upheld the demand of excise duty of Rs. 36,55,234.80 and a penalty of Rs. 10 lakhs imposed by Respondent No. 1. Since the Court held that aprons and cots are not excisable, the demand, penalty, and the Tribunal's Order were deemed illegal and were set aside.

Additional Observations by Sharad Manohar, J.:
Sharad Manohar, J. agreed with the judgment but highlighted additional anomalies. He noted that the stay of the Assistant Collector's Order was meaningless as it did not result in any actionable outcome. He also pointed out that the entire proceedings were handled casually, and the Collector's change of stance from considering aprons and cots as components to accessories without proper notice was perverse. The Tribunal's handling of the issue of alleged fraud or suppression of facts by the Petitioners was also criticized, though the point was left open as the primary issue of exemption was decided in favor of the Petitioners.

Conclusion:
The Court ruled in favor of the Petitioners, setting aside the Orders dated 7th October 1985 and 8th August 1989, and declared that aprons and cots are exempt from excise duty under Notification No. 197/67. The Petitioners were awarded costs quantified at Rs. 5,000/-.