9911796707
TMI Blog1988 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... onent part of railway wagon and therefore, fell under Tariff Item 68 of the CET. It was noticed by the department that the appellant was manufacturing the goods since long but they had not brought to the notice of the department and had been using these Pivot bolts for captive consumption in the manufacture of railway wagons which were ultimately cleared on payment of duty. Therefore, a notice dated 14-10-1982 for demanding duty of Rs. 24933.12 p for the period of October 1974 to 3-6-1982 was issued to the appellant company under Rule 9(2) of the Central Excise Rules for contravention, inter alia, of Rule 9(1). On adjudication, it was held by the Addl. Collector of Customs and Central Excise, Jaipur that the said product fell under Tariff I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to the fact that there is distance of some millimetres between the wall of the pivot bolt and the wall of the centre pivot top and the bogie frame. This relative movement between the walls of the underframe or chassis and the bogie or the wheel assembly is considered necessary for the smooth movement of the wagons over a curved railway track. If this movement is not allowed there may be possibilities of the damage to the wagons themselves or of accidents. He, therefore, submits that the pivot bolt s primary function is as component part of the wagon rather than as a mere fastener. Therefore, the product under consideration cannot be classified under Tariff Item 52. He relies for this proposition on Karnataka High Court s judgment in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He also submits that even if it is assumed that the pivot bolt allows for some relative movement to provide for swivelling effect of the wagon this is merely an additional advantage provided by the pivot bolt otherwise as the learned advocate himself states that the function of the pivot bolt is to hold together the bogie assembly and underframe or chassis. Holding together, according to the learned JDR, is nothing but fastening of the two aforesaid bodies. Therefore, according to him, the primary function of the pivot bolt is that of fastening and the classification of the product should be under Tariff Item 52. For his support the learned JDR relies upon the following citations :- (1) Simond Marshall Ltd. [1985 (22) E.L.T. 378 Bom.]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. We find that the adjudicating authority has merely gone by the fact that the product is described as bolt and that it is also threaded as the bolts generally are. He has not taken into account the technical aspect now relied upon by the learned advocate during the course of hearing before the Tribunal. We, however, agree at the same time with the learned JDR that the technical write-up sought to be relied upon by the learned advocate cannot be called in the strict sense a valid one because no technical authority has given this write-up. Postscript in the write-up as extracted above, indicates that it sought the approval of the learned advocate before submitting it impliedly so as not to create any legal complication. Nevertheless, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retrospective effect from the beginning of the Rules, that demand of duty in this case could arise but he further urges that this demand could not go beyond the provisions of Section 11A as has been held by the Hon ble Supreme Court in the case of J.K. Cotton Spinning and Weaving Mills [1987 (32) ELT 234 SC]. Now, Section 11A prescribes two time limits - ordinarily the time limit is six months for recovery of any duty but in cases where short levy or non-levy has arisen by reason of fraud, collusion or any wilful mis-statement or suppression of fact, or contravention of any of the provisions of this Act or of the rules made thereunder with an intent to evade payment of duty, the time limit gets extended to 5 years. It is admitted by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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