9911796707
TMI Blog2010 (2) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent. [Order per Ashutosh Mohunta, J.]. - The appellant has filed the present appeal before this Court under Section 35G of the Central Excise Act (in short, 'the Act') against the Order dated 13-8-2008 [2008 (232) E.L.T. 549 (Tri.-Del.)] (Annexure A-10) and Order dated 5-12-2008 [2009 (240) E.L.T. 209 (Tri.-Del.)] (Annexure A-12) passed by the Customs, Excise and 'Service Tax Appellate Tribunal, New Delhi (for short, 'the Tribunal') in Excise Appeal No. 4116/2004-Ex (BR) raising the following substantial questions of law (i) Whether the Extended period of limitation can be invoked in respect of the period of 07.07.1992 to March' 1994 when a doubt has been entertained with regard to the exigibility of lancing oxygen pipes? (ii) Whether conversion of pipe/tube of oxygen lancing pipe amounts to 'manufacture' within the meaning of Section 2 (f) of the Central Excise Act, 1944? 2. The appellant is engaged in the process of threading and affixing of socket at the end of pipes and tubes. The Appellant is also carrying out process of cold drawing and re-drawing the pipes and tubes. The Appellant is selling these pipes to Industrial Units for carrying oxygen in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Relevant extracts of Section 11 A as prevailing during the relevant period are as under: "11A. Recovery of duties not levied or not paid or short-levied or short paid or erroneously refunded (1) When any duty of excise has not been levied or paid or has been short levied or short-paid or erroneously refunded, [whether or not such non-levy or non-payment, short levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder,] a Central Excise Officer may, within [one year] from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of [acts or contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Tariff Act, 1985. The Steel tubes are cold drawn and in the process, the outer diameters get reduced. After cleaning the end of the tubes and removing the burs, the same are threaded and a steel socket is fixed thereon. These end products are called oxygen lancing pipes. 3. The matter has been examined. The oxygen lancing pipes are used for feeding oxygen in the process of oxygen lancing. The process of oxygen lancing is used principally for cutting heavy section steel and cast iron. The oxygen is fed to the cutting zone through such pipes and such pipes get consumed as the cutting action I proceeds. The final product viz. oxygen lancing pipe has a different name, character and use as compared to the raw material viz. steel tube. 4. It is, therefore, clarified that conversion of steel pipes/tubes into oxygen lancing pipes would amount to "manufacture" as the final product has a distinctive name, character and use. 5. Trade and field formations may be informed accordingly. 9. From the letter dated 02.01.1995 written by Assistant Collector (Technical) and Board Circular dated 27.03.2006, it appears that there was certainly doubt about the levy of duty on lancing pip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout informing the Central Excise authorities and had been removing these without payment of duty, these would have to be taken to attract the mischief of the provisions of rule 9(2) and the longer period of limitation was available. But the Tribunal reduced the penalty. Counsel for the appellants contended before us that in view of the trade notices which were referred to by the Tribunal, there is scope for believing that agarbaties were entitled to exemption and if that is so, then there is enough scope for believing that there was no need of taking out a licence under rule 174 of the said Rules and also that there was no need of paying duty at the time of removal of dhoop sticks, etc. Counsel further submitted that in any event apart from the fact that no licence had been taken and for which no licence was required because the whole duty was exempt in view of Notification No. 111/78, referred to hereinbefore, and in view of the fact that there was scope for believing that it was exempt under Schedule annexed to the first notification, i.e., 55/75, being handicrafts, the appellants could not be held to be guilty of the fact that excise duty had not been paid or short-levied ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
