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TMI Blog1997 (2) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... assifiable under Item No. 26-AA(ii) up to 31-7-1983 under the Central Excise Tariff as was in force prior to 1-8-1983; and under Item No. 25(9)(i) from 1-8-1983 to 27-2-1986, read with Notification Nos. 55/80-C.E., dated 13-5-1980, 209/83-C.E., dated 1-8-1983 and 62/85-C.E., dated 17-3-1985. It was also alleged that M/s. Joshi Steel Industries had suppressed the material facts of production and clearance of excisable goods with an intent to evade payment of duty. For payment of Central Excise Duty, extended period of limitation was invoked. In reply to the show cause notice, M/s. Joshi Steel Industries contended that the flats manufactured by them exceeded 5 mm in thickness. The matter was adjudicated by the Collector of Central Excise, Bhubaneshwar. Under his order-in-original dated 28-11-1986, he noted that in the accounts of M/s. Joshi Steel Industries as well as of their customers, the description of the M.S. flats was recorded as M.S. flats of 19 x 5 mm and of 25 x 5 mm. He confirmed the demand of Central Excise Duty amounting to Rs. 1,24,110.34 and imposed a penalty of Rs. 2 lakhs. On the seized goods redemption fine of Rs. 500/- was imposed with duty liability at the stage o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey had not declared the production and removal of excisable goods. M.S. flats available in the factory were found to be of thickness less than 5 mm (4.98 mm). On verification of the records available, it was noticed that they had been manufacturing and selling M.S. flats of 5 mm in thickness since 1-6-1982. They had not filed any classification list. On their own, without any approval by the Central Excise Department, they had been removing the goods manufactured by them without paying any central excise duty and without the cover of any duty paying documents or the documents prescribed/approved by the Central Excise Department. It was alleged in the show cause notice dated 2-5-1986 that they had not disclosed the fact of manufacture and clearance of excisable goods to the proper officer and that they had suppressed the facts relating to manufacture and clearance of excisable goods with the intent to evade central excise duty. 6. In reply to the show cause notice, the appellants had admitted that they were manufacturing flats; they, however, contested that the measurements of the flats manufactured by them were of thickness above 5 mm. In Paras 8, 9 and 10 of their reply dated 6- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under sub-item (i). Flats were classifiable under sub-item (iii) and attracted a relatively higher rate of central excise duty, the rate which was also applicable to plates, sheets and hoops. Under executive instructions, Board s F. No. 139/43/77/CX. 4, dated 13-4-1982 flats were defined as a finished product generally of rectangular cross-section with edges of controlled contour and of thickness 3 mm and over, width 400 mm and below, and supplied in straight lengths. The flats were to have rolled edges only (square or slightly grounded). Flat bars with bulb that had swelling on one or two faces of the same edge and a width of less than 400 mm, were also included in the group of flats. Bars were defined as finished products of solid section which could be round or half round with minimum diameter of 5 mm, square or polygonal with minimum diameter of 6 mm. After 1-8-1983, both bars and flats were brought under the same sub-item (9) of Item No. 25, although attracting different rates of duty, under sub-item 9(i) and sub-item 9(ii) - sub-item 9(i) for flats. Under sub-item 9(i), flats attracted a tariff rate of duty of Rs. 1,350/- per M.T. The bars were classified under sub-item 9(i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was known as M.S. Flats in trade and commerce which is established from the fact that their customers who had bought the goods from them have described the products as M.S. Flats. The appellants at no stage up to the completion of the adjudication proceedings had disputed the fact of manufacture of M.S. Flats. They had at no stage pleaded that their goods were bars. 9. The appellants had submitted that naming the product as flat by the petitioner cannot be a criteria for deciding that the product is flat for central excise purpose also . While the excisable goods are to be classified according to the real nature of the goods, the description in the Tariff, commercial understanding, use, etc., if the assessee seeks to dispute the description given by him, then the burden is on him to establish that the goods were not actually what he has described. There is nothing on record to substantiate the claim of the appellants before us that the goods in question were not flats but bars. As we have stated above, in such circumstances the onus is on the appellants and we find that they had failed to discharge the said onus. 10. The appellants have also contended that the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der : In adition to the standard manila tag, as mentioned above, the identification of merchant bar products may involve the die stamping of heat numbers on the ends of bars of certain dimensions. These specifications are as follows : Heat numbers are stamped on one end of all bars (round, squares or hexagons) of 2 or above, and on all flats three inches by one inch and above. 12. As we have referred above, everything that goes in the market as a bar , was not a bar for the purposes of item no. 26-AA(ia) of the erstwhile Central Excise Tariff as was in force prior to 1-8-1983. At page 981 of Volume 3 of the Customs Cooperation Council Nomenclature, Explanatory Notes, the bars have been referred to as semi-manufactures. There are sleeper bars, refer 1990 (47) E.L.T. 22 (Tribunal), tie bars, refer 1986 (23) E.L.T. 318 (Delhi), rail joint bars (page 761 of US Steel) concrete re-inforcing bars (billet steel bars, rail steel bars, axel steel bars) (page 809 of US Steel), sheet bars (page 94 of Wealth of India, part V), tin plat bars (page 100 of Wealth of India, Part V), tool steel bars and shell steel bars (page 102 of Wealth of India, Part V), and hoe bars (page 103 of We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion a square edge. Vertical rolls are not necessary for edge rolling of flat products. Edge rolling can be achieved by passing the section of the product through edging passes while rolling. At page 799 of the publication the making, shaping and treating of steel - US Steel 1970, 9th Edition following description occurs : Figure 29-18 shows three roll-pass designs for rolling square-edge flats, and one design for round-edge flats, as used on bar mills. Figure 29-18A illustrates a tongue and groove design used on a simple four stand old style bar mill. Figure 28-18B shows a diagonal design used on some mills, while figure 29-18C shows the most popular design, one used on many modern bar mills, consisting of a flat and edge lay out wherein the widths of the flats are regulated by edging grooves which at the same time give the section a square edge. This design permits the rolling of several sizes in the same grooves. Round-edge flats are commonly rolled as shown in figure 20-18D. 15. It is also stated that in certain designs, the flattening is done in plain rolls and the width is regulated by a vertical edging stand. 16. In view of the above, on merits, we consider that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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