9911796707
TMI Blog1998 (7) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of West Bengal. 1.2 Three show cause notices dated 23-11-1990, 19-3-1991 and 10-1-1991 raising demand of duty of Rs. 1,85,086.20, Rs. 1,26,624.91 and Rs. 19,454.64 respectively, for the periods from 3/86 to 2/89, 1/87 to 12/87 and 6/86 to 12/86 respectively, were issued by the appellants' jurisdictional Central Excise Authorities. After due adjudication, the Commissioner of Central Excise, Calcutta vide his impugned Order dated 25-2-1992 confirmed the total demand of Rs. 2,76,877.14 and levied penalty of Rs. 30,000.00 on the appellants. The said demand, confirmed against the appellants relates to the following :- (a) Waste and scrap arising at different stages in the course of manufacture and/or use of rubber sheets; (b)&e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression, "manufacture". In support of his above submission, he relies on the following decisions:- (i) Modi Rubber Limited v. U.O.I. reported in 1987 (29) E.L.T. 502 (Del.) ; (ii) Tansi Engineering Works v. C.C. Ex. reported in 1996 (88) E.L.T. 407 (Tribunal) ; (iii) C.C.Ex. v. Kiran Spinning Mills reported in 1988 (34) E.L.T. 5(S.C.) ; (iv) Moti Laminates Pvt. Ltd. v. C.C.Ex. reported in 1995 (76) E.L.T. 241 (S.C.). 3. As regards the duty on the Aluminium Lasts, he submitted that they are not at all engaged in the manufacture of Lasts. The same are duly purchased by them from the market or from the manufacturers of the Aluminium Lasts. The observation of the adjudicating authority that the Lasts have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct classifiable under sub-heading 4819.90 as held by the adjudicating authority. He submitted that they are buying fully manufactured paper and using the same in their factory in the fashion explained above. Resultant Paper Patterns are neither marketable nor are capable of being sold in the market. 5. Advancing his arguments on the point of limitation, he submits that all the show cause notices have been issued after long expiry of six months from the relevant date and as such, were clearly barred by limitation provided under Section 11A(1). There was no fraud or collusion or misstatement or otherwise on the part of the appellant firm with an intent to evade payment of duty so as to justifiably invoke the extended period. He submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SDR for the Revenue submitted that the rubber waste and scrap having been specifically mentioned in sub-heading 4004.00 would attract the duty of excise. Drawing attention to Chapter Note 6 of Chapter 40, he submitted that the same defines the expression - `waste parings and scrap'. In the presence of the said Chapter Note, there was no requirement of inclusion of another Chapter Note specifically enlarging the scope of manufacture covering the waste and scrap in question. As regards the aluminium lasts, he submitted that there is a clear finding by the adjudicating authority that the same have been manufactured by the appellants out of aluminium purchased by them from the market. The processes undertaken by the appellants have also been di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luminium lasts, we find that there is a factual contradiction on the question of manufacture of the same, whereas the adjudicating authority has held that the appellants were engaged in the manufacture of aluminium lasts out of rough castings of aluminium purchased by them from the open market for undertaking the process of machining, making holes and rivetting a pin or hook to hold, the appellants had contended that the said aluminium lasts were being purchased by them from the market or from the manufacturer in a fully manufactured condition. Such a contradiction in the factual position can be resolved only at an original level. Accordingly, we feel that the matter needs further verification at the level of the appellants' jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific mention, `waste and scrap of rubber' under Tariff Heading 40.04, the same became dutiable and excisable. Nevertheless, it cannot be said that the Department was not aware of the emergence of waste and scrap of rubber in the appellants' factory for which they have already issued show cause notice in the year, 1981. As such, the ingredients of proviso to Section 11A cannot be said to be satisfied so as to justifiably invoke the same, when the Department was already having the knowledge and therefore, it cannot be said that the appellant have suppressed any material facts from the Department with the intention of evasion of duty. We also take note of the fact that the Tribunal vide its earlier Order dated 27-7-1990, has held the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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