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TMI Blog1992 (2) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... orage batteries meriting classification under Item 31(3) of the erstwhile Central Excise Tariff. Based on this decision, the Collector held that the appellants had misdeclared the goods by seeking their classification under Item 23A(2), and imposed a penalty of Rs. 5,000/- under Rule 173Q. He also ordered confiscation of 8981 pieces of glass containers valued at Rs. 4,50,892/- which were misdeclared and gave the option to clear them on payment of fine of Rs. 20,000/- in lieu of confiscation. The Collector also directed that the amount of duty short levied on the glass containers which are held to have been removed clandestinely without payment of duty at the appropriate rate under Item 31(3) should be recovered under Rule 9(2) subject to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss and glassware , under sub-item (4), accepted the appellants contention once, which they later again re-opened and, while these proceedings were not concluded, initiated fresh proceedings based on a surprise visit and the charge of misdeclaration and a demand for five years besides confiscation and penalty. 3. The appellants have moved an application for production of additional evidence alongwith which they have enclosed a copy of Order-in-Appeal No. 142- CE/JPR/87 issued in July, 1987 by the Collector of Central Excise (Appeals), New Delhi in their own case holding that the glass jars of size 27 x 17 x 15 cm were classifiable under Item 23A(4). We have allowed this application and taken on record the aforesaid order as it is relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storage batteries. It is also claimed that the ISI Standard IS- 4268 covers air depolarised primary wet cells and not glass containers for electric storage batteries. They have also referred to the Trade Notices issued by the Cochin and Hyderabad Central Excise Collectorate in 1969 and 1970 respectively notifying that glass containers of primary cells such as Laclanche Cells would be classifiable under Item 23A(4). Their claim, therefore, is that even in view of these Trade Notices, the Department could not classify the glass containers under Item 31(3). 5. The appellants have also stated that all the facts about the subject goods including the fact of their supply to the Railways were within the knowledge of the authorities and there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Machinery Manufacturers Ltd. v. Collector of Central Excise, Baroda [1983 (13) E.L.T. 1249) in which the Tribunal held that recoveries of duty in cases of re-classification can be made only in respect of a period of six months preceding the date of order as determined with due regard to the provisions of Section 11A. 7. Shri L.C. Chakraborty, the Ld. S.D.R., referred to the decision of the Tribunal in the case of Jaishri Engineering Co. (Pvt.) Ltd. v. Collector of Central Excise [1989 (39) E.L.T. 449] in which it was held that the extended period of five years was applicable to a case of misdeclaration in the classification list. 8. We have carefully considered the matter. As for the classification of the subject goods, we consider tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, the authorities are entitled to recover any short levy arising out of our order on classification for a duration of only six months because of the facts placed before us, it cannot be said that there was any mis-statement or suppression of facts. In this view of the matter, the charge of mis-declaration cannot be said to have been established, and the orders of confiscation and penalty are liable to be set aside. We, accordingly, allow the appeal and set aside the order. The authorities may takes steps to recover the duty for the period of six months prior to the date of issue of the show cause notice i.e. 4-2-1983. 11. The appellants have made a grievance in the appeal that the show cause notice did not indicate how the amount of dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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