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TMI Blog1996 (10) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944. He has also ordered for confiscation of low density polyethylene flexible (cellular) sheets measuring 16807.9 L.Mtrs. and 1050 kgs. of scrap valued at Rs. 5,68,213.00 under seizure under Rule 173Q read with Rule 9(2), Rule 52A of the Central Excise Rules, 1944. However, he has given an option of redemption on payment of fine of Rs. 1.50 lakhs in lieu of confiscation. He has also ordered confiscation of 88 rolls and 19 sheets measuring 2861.66 L. Mtrs. valued at Rs. 86,591.25 under seizure under the said Rules. However, he has given an option to redeem the goods on payment of Rs. 25,000/-. He has also imposed a penalty of Rs. 50,000/- only under Rule 173Q(1) of the Central Excise Rules, 1944 on the appellants. 3. Appeal No. E/3454/88-C : This appeal arises out of order-in-appeal passed by the Collector (Appeals) by his order dated 9-9-1988. By this order, he has confirmed the order-in-original dated 15-5-1987 passed by the Assistant Collector of Central Excise Division IX, Bombay-II. By this order, the Collector (Appeals) has confirmed the classification of the goods manufactured by the appellants namely Low Density Polyethylene Sheets (Flexible) of various thickness of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 132/86 was not admissible to the product `Expanded Low Density Polyethylene Sheets manufactured by the appellant. On their premises, the officers visited the factory of the appellant on 1-12-1986 and took samples of the product for being sent to Dy. Chief Chemist, Bombay for analytical test. They also examined the correct classification of the product and it was found that the same was required to be classified under sub-heading No. 3921.12 of the Central Excise Tariff Act, 1985 chargeable to duty at 35% ad valorem. Therefore, the officers visited the factory again on 9-12-1986 and seized the goods lying in the factory measuring 16807.9 L. Mtrs. and 1050 kgs. of scrap in the reasonable belief that the appellant had contravened the provisions of Central Excises and Salt Act, 1944 and the Rules framed thereunder. The officers again carried a follow-up action and visited the godown-cum-office premises of the appellant on 12-12-1986 and seized the stock of 88 rolls and 19 sheets of Expanded LDPE Flexible totally measuring 2861.66 L.Mtrs. valued at Rs. 86,591.25, on the reasonable belief that the said goods were manufactured without obtaining a Central Excise licence and cleared wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is their bona fide belief that their goods are not of cellular nature nor they are known in the commercial parlance as cellular plastic. Therefore, they had pleaded that depending on the classification of their goods, the rate of duty chargeable should be only 25% and not 35% as alleged in the show cause notice. 6. The ld. Collector on an appreciation of their evidence and submissions rejected their contention. Ld. Collector has observed that it is true that the party had initially approached the department for the classification of their product. However, from the above facts noted by him in the order it indicated that they were aware of the product being not of non-cellular nature nor acrylic sheet and therefore, vide their letter dated 21-4-1986, they had given the misleading information regarding their product being acrylic sheet falling under 3920.31 or 3920.32 both the sub-headings related to non-cellular products. The ld. Collector had also rejected their contention that `expanded plastic and `cellular plastic are synonymous. The ld. Collector has held that though they had initially approached the department for guidance, at the crucial time they did feed the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Superintendent dated 16-4-1986 wherein he had clearly stated as follows : Office of the Supdt. Central excise, Range III Bombay Div. No. IX. No. RIII/Shroff/Exempt/86/T06 Palghar, dated 16th April 1986 M/s. Shroff Textiles Ltd., J-78, MIDC Tarapore, Dist. Thane. Gentleman, Sub :- Submission of declaration claiming exemption from licencing control under Notification 174/86, dated 1-3-1986. On going through the declaration dated 11th April 1986 claiming exemption from licencing control under Notification 174/86, dated 1-3-1986 for the year 1986-87 it is seen that the clearance value of the goods effected by you during 1985-86 is more than five lakhs. Moreover from the information furnished in your declaration it is seen that you are manufacturing expanded Polyethylene Sheets which falls under Heading 3920.32 and liable to pay Central Excise duty @ 3590 Adv. As you have exceded the clearance value more than five lakhs and the finished product manufactured is liable to pay Central Excise Duty and as such you are required to take out Central Excise Licences. It is not clear from your declaration of the end use of your finished product. It is requested to furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-heading Nos. 3921.11 and [3921.12]. The letter states that the Collector of Central Excise, Bombay-II, has been advised to consider allowing the concessional rate of 25% to the products falling under sub-heading Nos. 3921.11 and 3921.12 as per the said notification. Therefore, Counsel argued that the benefit of notification cannot be denied to them. 8. Ld. JDR defending the Collector s order submitted that the appellant had not furnished full details as required and the conclusion of the Collector in respect of the invokation of larger period is a correct order. Therefore, he submitted that appeal should be dismissed. 9. We have carefully considered the submissions made by both the sides and have perused the records. The appellants have not challenged the classification of the product in question. The only question that requires to be considered is as to whether the demands are barred by time and as to whether the benefit of the exemption notification can be extended to the impugned goods. It is seen from the first letter addressed by the appellants on 6-3-1986 to the Supdt. that they had informed the department that they are manufacturing Flexible Expanded Low Density Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were exempted from payment of duty in respect of low density polyethylene sheets out of duty paid material on not claiming any set off or Modvat benefit of raw-material, as per Notification No. 132/86, dated 1-3-1986. The appellants have also submitted that they had given the samples of the goods to the department and the Supdt. has informed them by his correspondence dated 16-4-1986 and 25-6-1986 about their goods being exempted. In that view of the matter, it is their plea that there is no suppression and also that the department could have made further investigations in the matter if need be. They contend that as there has been no mala fide on their part and they had approached to the department on their own with all the details, they cannot be alleged to have suppressed any information with a view to evade Central Excise Duty. On a perusal of these documents, we find force in the submission of the appellants and in the arguments advanced by the Sr. Advocate, The ld. Collector has come to a very peculiar conclusion that the proper officer is the Asstt. Cellector and the correspondence with the Supdt. of Excise has no significance. It is very strange finding. Indeed, the Supdt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it thereof is not available to the department in the facts and circumstances of the case already mentioned by him and therefore, the amount beyond the period of six months is not recoverable. 16. In so far as the question of exemption notification is concerned, I find that Notification No. 132/86 automatically stands ruled out in view of the admitted position regarding the classification of the product under 3921.12 since this heading is not covered by the said notification. 17. As regards Notification No. 269/86 is concerned, there is nothing on record to show that its benefit was claimed at the time of clearance or earlier. In any eventuality, there is unfortunately nothing to show that the conditions of this notification were duly satisfied. Our attention has been drawn to the show cause notices and the description of the seized goods mentioned therein but this description is apparently based on the basis of the accompanying documents only. The Chemical Test Report of the DYCC does not help us as it does not indicate the thickness. No other test report or technical or commercial literature has been produced to show that the specifications are satisfied. This is apart from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually referred to the third Member is as below :- 1. Whether in the facts and circumstances, the matter is required to be remanded to the Collector as proposed by Hon ble Member (J) or the appeal is required to be disposed of in the terms proposed by the Vice President. 22. From these orders it is clear that they are agreed on the question of classification of the goods in question. The decision on classification passed by the departmental authorities, Collector in one appeal and by Collector (Appeals) in the other are approved by the Judicial Member as well as the Vice President. They are also agreed that the longer period of limitation is not applicable. The difference of opinion which has been spelt out and referred to the third Member for decision is limited to the question whether the matter requires to be remanded for a fresh decision about the admissibility of Exemption Notification 269/86-C.E., dated 24-4-1986 as proposed by Member (Judicial), Shri Peeran or the appellants not having claimed the benefit of the said exemption earlier and the goods not being available, a remand may not serve any purpose at this stage and hence such a course is not to be followed as he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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