1998 (5) TMI 91 - AT - Central Excise

Summary

Issues:
Challenge to Order-in-Original No. 26/89 dated 31-5-1989 regarding a single clearance of X-ray control equipment, tube head, and cables. Contentions on limitation, merits, and Notification No. 179/77 applicability.

Analysis:
The appellant, involved in manufacturing X-ray control units, faced a dispute over a single clearance made on 28-2-1985 to the same customer but under different invoices. The show cause notice alleged suppression of facts by not disclosing the clearance of tube heads and cable sets along with the X-ray control unit. The Additional Collector confirmed the demand, leading to the appeal. The appellant argued on limitation, merits, and the application of Notification No. 179/77.

Regarding the limitation issue, the appellant cited past show cause notices and the department's knowledge of their practices, claiming no intention to evade duty. However, the Tribunal found that the allegation in the show cause notice attracted the proviso to Section 11A of the Central Excise Act, establishing suppression and allowing the larger period of limitation.

On the merits, the appellant contended that they only manufactured the X-ray control unit, while the complete X-ray system was assembled at the buyer's site using the control unit, tube head, and cables. The Tribunal determined that the complete system constituted different excisable goods, distinct from the control unit. Although the show cause notice focused on the tube head's value, the duty was demanded based on the entire system's creation at the site.

Regarding Notification No. 179/77 applicability, the appellant argued for an exemption due to assembling without power. However, the adjudicating authority did not address this contention, necessitating a remand for a decision on the notification's applicability and a fresh order. If the notification does not apply, the confirmation of demand should be limited to the amount in the show cause notice or the correct amount, whichever is lower. Consequently, the appeal was allowed, setting aside the impugned order for further adjudication.