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TMI Blog2000 (12) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... d installed at the BOF Shop, though the various assemblies were manufactured in the Growth Shop at Adityapur in terms of the work orders issued to them. As according to the appellant firm, the said goods manufactured by their Growth Shop were crane parts classifiable under the erstwhile Tariff Item 68 and exempted from duty in terms of Notification No. 118/75-C.E., dated 30-4-1975, as amended, the appellant firm moved an application for issue of L-6 licence for receipt of the goods at its factory without payment of duty. The said licence was issued and accordingly, the so-called components of E.O.T. crane were cleared without payment of duty by treating the same as crane parts for their further use in the appellants factory. 1.2 Thereafter, a show cause notice dated 8-2-1984 was issued by the Assistant Commissioner, Central Excise, Patna alleging that what had been manufactured at the Growth Shop of the appellant company at Adityapur, was a complete crane and not parts of crane and as such, benefit of Notification No. 118/75-C.E. was wrongly availed by the appellants. The dispute as to whether what was manufactured at Adityapur Unit was a full crane cleared in semi-knock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untered the same by taking the stand that the same were full cranes and not parts and as such, denied the benefit of the Notification. Patna High Court held in favour of the Department. She submitted that though an appeal is pending before the Supreme Court against the above Order of the Patna High Court, but as the High Court s Order has not been reversed till date, the appellants are bound by the same. She submitted that with the higher incidence of duty on crane parts after 1986, the Revenue has changed its stand and has held the same very goods as parts. She submitted that the Revenue as well as the appellant firm are bound by the judgment of the Patna High Court which is holding the field and it was not open to the Department to take altogether a different stand than what they themselves have been canvassing before the Hon ble High Court which has also been accepted by the High Court. As regards limitation, she pleaded that the entire demand is barred by limitation inasmuch as the entire facts were known to the Department. The notice also does not allege any suppression of facts or mis-statement etc. She further pleaded that as they were following the High Court s Order with w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same item - one for pre-1986 period and the other for post-1986 period. As Patna High Court s Judgment in the appellants own case is still a good law having not been interfered by the Supreme Court, till date, we follow the same and hold the goods to be complete cranes falling under Heading 84.26. Differential duty thus demanded by the impugned Order is set aside. 5. The appellants also have a good case on limitation. The show cause notice dated 13-8-1990 for the period from January, 1989 to January, 1990 is beyond the period of six months from the relevant date. Notice does not allege any suppression, mis-statement etc. on the part of the appellant firm. The very fact that there was a notice in the year 1984, raising a dispute of classification in respect of the same very goods and the subsequent litigation before the Patna High Court reflects upon the knowledge on the part of the Department. By classifying the product as full and complete crane, the appellants were only following High Court s Order which they were legally also bound to follow. No case for invoking larger period of limitation can be said to have been made out by the Department. Accordingly, the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patna. He has found that in the earlier case ............, it was observed that what the party (appellant herein) removed was indeed a crane, manufactured, assembled, tested and approved by the party at its manufacturing premises itself against a specific order of its customer. But, in the instant case, the party at no stage produced any evidence in support of their contention that the impugned goods are supplies of a crane against a specific order of their customer and such cranes have been manufactured/assembled/tested/approved in its factory but are being cleared in semi-knocked down condition as was done in the year 1984. On the other hand, it is on statutory records and even admitted by the party that the goods are mere parts of crane. (emphasis supplied). 11. On limitation, the Collector has held that under S.R.P., there is no control over clearances of excisable goods. The appellant wrongly took recourse of earlier order dated 27-6-1985 and cleared parts of crane under the cover of crane cleared in semi-knocked down condition with the sole intention to evade duty. Hence the confirmation of the aforesaid demand of duty and imposition of penalty of Rupees One Lakh. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and supply one number Lance Crane 35 tonnes x 6.6 M-span AC with all structural and mechanical components, AC electricals and conventional controls, complete as per TMS drawing No. 3263.00.001/A..... The above crane shall be manufactured and supplied complete new conforming to TISCO Standard 046006 already with you and latest decision/developments on AC cranes..... After complete assembly of the crane at your shop, a joint inspection will be carried by CE (Mod) and CEE s representatives and any defects pointed out after inspection shall be rectified by you before despatch of the crane parts. The crane shall be despatched after match marking duly approved by CE (Mod). Lance Crane. - A consignment list of parts and five copies of all assembly and erection, electrical schematic and wiring diagrams, panel and cable route layout drawings shall be sent to CE (Mod) before despatch of the crane. Trial run. - Idle trial run in the presence of CE (Mod) and CEE s representatives of all motions to be done at your shop to check lubrications, alignment and performance of the crane parts. Delivery : November, 1982. The cost indicated is based on your letter No. TMS/D/1346, dated 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 15. It is, therefore, clear that if the appellants want to take advantage of the aforesaid judgment of Patna High Court in the present proceedings, they must show that what they cleared in the instant case were fully manufactured/assembled cranes cleared in semi-knocked down condition. It has been held by the adjudicating authority in very categorical terms that the appellant has at no stage produced any evidence in support of their contention. Despite this finding no such evidence has also been produced before us either with the appeal papers or during the course of hearing. 16. Ld. Advocate, Ms. Amrita Mitra for the appellants has urged that the appellants contention was always, and still is before the Apex Court in SLP pending sub-judice before that Court, that they manufactured and cleared parts of crane, but they submitted a classification as crane for the same goods in deference to the judgment of Patna High Court. She submits that merely because the statutory documents and records show the goods as parts of crane consistent with their contention before the Apex Court in the earlier case, these should not be treated as parts of crane in view of the Patna High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f opinion between Hon ble Member (Technical) Shri P.C. Jain and Hon ble Member (Judicial) Smt. Archana Wadhwa have been referred to me as a Third Member to give my opinion : 1. Whether on the basis of evidence available on record including the judgement of Patna High Court in the appellant s own case reported in 1988 (37) E.L.T. 297, is it correct to hold that the goods cleared by the appellant were parts of crane as held by Technical Member or cranes as held by Judicial Member? 2. If it is held that the goods cleared by the appellants are Parts of cranes , is the demand of duty liable to be set aside on the ground of limitation under Section 11A of the Central Excise Act, 1944? 21. Shri Joseph Vallapally, learned Senior Advocate, assisted by S/Shri V. Kram Singh, learned Advocate, V.P. Sinha, learned Consultant, D. Dunne, Senior D.M. and K.H.N. Ramanathan, Assistant Manager, appearing for the appellants, at the outset, mentioned that the Civil Appeal No. 782 of 1987 filed by the appellants in the Hon ble Supreme Court against the judgment dated 9-3-1987 of Hon ble High Court of Patna has since been decided on 9-2-2000. The judgment dated 9-2-2000 of the Apex Court is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Board v. C.C.E., Madras - 1994 (74) E.L.T. 9 (S.C.); (v) Cosmic Dye Chemical v. C.C.E., Bombay - 1995 (75) E.L.T. 721 (S.C.) ; (vi) Pushpam Pharmaceuticals Company v. C.C.E., Bombay - 1995 (78) E.L.T. 401 (S.C.); (vii) C.C.E., Baroda v. Cotspun Limited - 1999 (113) E.L.T. 353 (S.C.) ; and (viii) J.L. Morison (India) v. Assistant Collector of Central Excise - 2000 (117) E.L.T. 537 (S.C.). At the end, the learned Senior Advocate submits that the findings arrived at and the order recorded by Hon ble Member (Judicial ) are based on a sound reasoning. 22. Shri A.K. Chattopadhaya, learned JDR appearing for the Revenue, supports the order recorded by Hon ble Member (Technical). 23. On hearing the rival contentions and on a careful perusal of the relevant documents, I am inclined to agree with the findings arrived at and the order recorded by Hon ble Member (Technical) because, as rightly observed by the Adjudicating authority, the party at no stage produced any evidence in support of their contention that the impugned goods are supplies of a crane against a specific order of their customer and such cranes have been manufactured/assembled/tested/approved in its facto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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