9911796707
TMI Blog1993 (11) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed demand of Rs. 2,98,925/- and also imposed a penalty of Rs. 1000/- on the ground that the appellant had brought in duty-paid goods into the factory after one year of initial removal and cleared the same after testing without payment of duty and so Rule 173H would not be applicable and Central Excise duty should be paid on the said consignment. 2. Let me first outline the brief background to the subject appeal; the appellants are engaged in the manufacture of Wires and Cables falling within Chapter 85.44 of the Central Excise Tariff and they received back certain quantity of electric wires and cables for testing purposes under Rule 173H; these goods had been earlier cleared under GP's after payment of duty. It was felt that since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order. The question for consideration here is whether the order of demand and penalty as above is sustainable in law or not. 5. Appellants have contested mainly as under :- (i) once the matter has been decided by the competent authority, it cannot be adjudicated again. The Asstt. Collector has already decided the issue vide his order dated 31-3-1992 and so readjudication by the impugned order is bad in law. (ii) in the earlier order a penalty of Rs. 1000/- was imposed for the very same goods; again a penalty of the same amount has been imposed. There cannot be double penalty for the same offence. (iii) demand under Rule 9(1) and Section 11A is not justified, since duty-paid goods were brought back for testing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as pointed out by the appellant, imposition of penalty for a second time is bad in law and accordingly the penalty has to be set aside. Further, no penalty is imposable in view of the cited case of K.R. Steel Union - 1987 (31) E.L.T. 375 (T) also. 7. As regards the demand for duty also, the Asstt. Collector has fallen into error in concluding that the appellant had brought the goods back after the expiry of the prescribed period and without obtaining extension from the prescribed authority. Rule 173H has undergone several amendments. Prior to May 1989, the Rule had only two sub-rules (1) and (2) and there were no proviso clauses. By Notn. 21/89 dt. 10-5-1989, the first proviso clause was inserted in the sub-rule (1) which read as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipts dt. 20-10-1990, 2-11-1990 and 18-12-1990 also would not be hit by the proviso clause with reference to the one year or six months period as held by the Asstt. Collector. The Trade Notice 37/91 dt. 20-3-1991 relied by the Asstt. Collector refers to the goods so remade, reconditioned etc. vide clause (j) & so does not apply here. Since testing does not amount to manufacture, the appellants bringing into the factory the impugned duty-paid goods and subsequent removal thereof duty free after carrying out the testing, would be covered by sub-rule (2) earlier to 11-9-1990 & by sub-rule (3) after 11-9-1990 and the demand therefore cannot be sustained. The cited case laws are also in the appellant's favour. 10. In view of the above discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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