9911796707
TMI Blog1992 (4) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... er alleged that the appellants had wilfully suppressed and mis-stated facts resulting in evasion of duty amounting to Rs. 4,29,935 during the period 1-4-1986 to 31-8-1988. They are asked to show cause as to why the duty short-levied should not be recovered under the proviso to sub-section (1) of Section 11A of the Central Excises and Salt Act, 1944. In reply to the show-cause notice and also during the personal hearing before the adjudicating authority the appellants denied all charges. However, by the impugned order dated 16-8-1990 the Additional Collector confirmed the demand of Rs. 4,29,935 and also imposed a penalty of Rs. 25,000 on the appellants under Rule 173Q. 2. On behalf of the appellants the learned Advocate Shri R. Santhanam assisted by Advocate Shri R.C. Gupta appeared before us. He stated that the order passed by the Additional Collector was illegal since the classification lists effective from 1-4-1986, 1-3-1987 and 1-3-1988 referred to in the impugned order were duly approved by the Assistant Collector and the monthly RT 12 returns classifying the goods in question under Tariff Heading 90.33 were duly assessed and finalised. He contended that under these circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Section does not cover articles of Chapter 90 is not relevant for the purpose of classification of speedometer cables and elbows since not being parts or accessories of speedometer, speedometer cables or flexible shafts cannot be deemed as articles of Chapter 90 falling under heading 90.33 of the Tariff. He argued that in terms of the Note 2(a) to Section XVI speedometer cables being transmission shafts are classifiable under Heading 84.83 of the Tariff. He referred to the impugned order and contended that the correct description of the goods having been suppressed or mis-stated by the appellants in the relevant classification lists, the extended period in terms of proviso to sub-section (1) of Section 11A of the Central Excises and Salt Act, 1944 was correctly invoked by the adjudicating authority. He argued that the Central Excise authorities were not estopped from taking a view different than in the approved classification list. In this regard he placed reliance on the decision of Supreme Court in the case of Elson Machines (P) Ltd. v. Collector of Central Excise reported in 1988 (38) E.L.T. 571 (S.C.). 4. We have examined the records of the case and considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the Department that speedometer and elbow are complete items in themselves which are specifically covered under Heading 84.83 since speedometer cable is a flexible transmission shaft which in conjunction with the elbow transmits motion from the wheel in a automobile to the speedometer. 6. The Central Excise Tariff Act, 1985 is aligned to the HSN which incorporates the international expertise and wisdom in tariff matters. Hence, as observed by the Tribunal in the case of Metre Satellite Ltd. v. Collector of Central Excise 1990 (45) E.L.T. 697 the Explanatory Notes- to HSN can act as an appropriate aid to the classification of goods under the Central Excise Tariff. In this regard we find that for the determination of the classification of the items in question the following extracts from the notes to Heading 84.83 of the HSN are relevant :- 84,83 TRANSMISSION SHAFTS (INCLUDING CAM SHAFTS AND CRANK SHAFTS).......... CLUTCHES AND SHAFT COUPLINGS (INCLUDING UNIVERSAL JOINTS) 8483.10 Transmission shafts (including cam shafts and crank shafts) and cranks ........................ ........................ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coupling device. Since shaft coupling are specifically covered by Heading 84.83, we hold that coupling joints for speedometer cables are also classifiable under Heading 84.83. 9. We find that while confirming the demand of duty for the extended period in terms of proviso to sub-section (1) of Section 11A the adjudicating authority has held that the appellants had mis-stated, the description of the goods in the relevant classification lists. In this regard it has been pointed out that in the classification lists effective from 1-4-1986 and 1-3-1987 instead of describing the items in question as Flexible shaft and elbow , they were misdeclared as drive and elbow respectively and even in the classification list which came in force with effect from 1-3-1988 the goods were incorrectly described as Flexible drive shaft cable and elbow . In this regard on a simple perusal of the classification lists and the RT12 returns filed during the relevant period we find that there is no force at all in the contention of the adjudicating authority that the appellants had wilfully mis-stated or misdeclared the description of the goods with the intent to evade duty. We find that one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful mis-statement or suppression or contravention of any provisions of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal came to the conclusion that the facts referred to herein before do not warrant any inference of fraud. The assessee declared the goods on the basis of their belief of the interpretation of the provisions of the law that the exempted goods were not required to be included and these did not include the value of the exempted goods which they manufactured at the relevant time. The Tribunal found that the explanation, was plausible and also noted that the department had full knowledge of the facts about manufacture of all goods manufactured by the respondent when the declaration was filed by the respondent. The respondent did not include the value of the product other man those falling under Tariff Item 14E manufactured by the respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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