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TMI Blog1984 (3) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants purchased some pipes from the market and improvisedly made this item by arranging the pipes and connected them with U shape bends and fitted them in their cold storage. The appellants urged that such items are not liable to Central Excise duty. In May, 1975 some of the officers of the Central Excise Preventive Branch, Kanpur paid a surprise visit to their cold storage premises and conducted a survey of the plant. The department alleged that the appellants had not taken out a Central Excise licence for the manufacture of these items and these parts have been utilised without filing their classification list. The goods were seized for contraventions of Rules 9(1), 52-A, 52, 173G(4) and 173Q read with Rule 226 of the Central Excise R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29A sub-clause (iii) the part would not be liable for excise duty unless there is a sale. He also argued that there was no clandestine removal. According to him Sections 11A and 11B are independent provisions and the removal was prior to the amendment passed under the Finance Act, 1982, He also raised a question of time-bar. The part was utilised during March, 1975. The deduction was on 8-5-1975. The Show Cause Notice was issued on 4-8-1977. There was no fraud or suppression. He also argued that the goods were exempted under Notification 132/68 of 13-6-1968. He pointed out that the penalty and the redemption fine are not warranted. 5. Shri S.N. Khanna appearing from the department argued that the goods became excisable because they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons raised are without force. Once the basis that these items or goods are liable to duty is established, the question is whether Tariff Item 29A would be applicable. The learned counsel for the appellant mainly relied on the judgment of the Hon ble Allahabad High Court in Mother India Refrigerating Industries Pvt. Ltd. . This decision has since been considered by the Hon ble Gujarat High Court and the reasons set out in the judgment of the Hon ble Gujarat High Court indicate that the question of sale would arise only in respect of Clause (iii). The SDR also cited the decision of the Punjab Haryana High Court in the matter of Frick India Ltd. v. Union of India. 8. It is, therefore, manifest that the appellant who manufactured excisabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e confiscated the goods, imposed the redemption fine of ₹ 5,000/- and a penalty of ₹ 1,000/-. It is well settled that the amendment made in Rules 9 and 49 of the Central Excise Rules by the notification of the Govt. of India in the Ministry of Finance (Deptt. of Revenue) No. G.S.R. 74(E), dated 22-9-1982 contains an explanation whereby it is declared that no action or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. In view of this explanation, the question of confiscation and imposition of redemption fine and personal penalty cannot be sustained. The appellant, is, however, liable to pay the duty. The appeal is hence allowed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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