9911796707
TMI Blog1984 (10) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... y dated 31-10-1981. The impugned order of the Collector was passed, in review, on a petition for this purpose having been made to him by the appellants herein, under the provisions of section 35A of the Act, as then prevailing. 2. The proceedings against the appellants were initiated by means of a show cause notice, issued on 14th October, 1980, received by them on 31st October, 1980, whereby they were required to show cause as to why excise duty of ₹ 18,10,545.90 plus special excise duty of ₹ 82,975.58, totalling to ₹ 18,93,521.48, be not recovered from them on the ground that they had affected clearances of products manufactured by them falling under Tariff Item 26A without payment of any excise duty by wrongful utili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. 4. After the Assistant Collector confirmed the notice, the Collector (Appeals) in his review order held that duty demand in relation to the quantity manufactured out of indigenous scrap was not sustainable inasmuch as it was possible to ascertain the quantity of the indigenous material that had gone into manufacture of the final products produced by the appellants. He, however, rejected the plea of the appellants as to time-bar on the view that it was a clear case of suppression of the fact that appellants had been making use of imported scrap also, in their products, and to that extent the extended period, as permissible under Rule 10 as it then existed, was available. He accordingly modified Assistant Collector s order to the eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hased from the market. He further argued that even if we were to hold that quantity of imported scrap could not be extended benefit of this notification, then the demand beyond six months was not enforceable inasmuch as the appellants had been duly filing classification lists, and RT 12 returns disclosing the whole quantity of scrap used by them, and there was no concealment on their part nor any suppression of facts. 6. Shri N.I. Ramanathan, S.D.R., countered the last mentioned argument by placing reliance on judgment of the Tribunal in the case of Abilities (India) Ltd., Ghaziabad v. Collector of Central Excise, Meerut, reported in 1984 (16) E.L.T. 619 (Tribunal) to the effect that even when classification lists are filed the absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempts copper in any crude form including ingots, bars, blocks, slabs, billets, shots and pellets, falling under sub-item (1), and wire bars, wire rods, and castings of copper falling under sub-item (1a) and waste and scrap of copper falling under sub-item (1b) of Item No. 26A, from the whole of the duty of excise leviable thereon, if made from any of the following materials or a combination thereof, namely :- (i) Old scrap of copper; or (ii) Waste or scrap obtained from copper and copper alloys where the prescribed amount of duty of excise, or, as the case may be, the additional duty leviable under Section 2A of the Indian Tariff Act, 1934 (32 of 1934), has been paid on the copper or the copper content of alloys; or (iii) Virgin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result of some agreements entered into by appellants with the other importers, when the goods were on the high-seas. The authority cited by the learned counsel for the appellants to the effect that purchases made directly from the manufacturers at the factory gate, were on the same footing as of open market, is clearly distinguishable from the case in hand, where the goods are admittedly imported goods. 10. It is not disputed that so far no countervailing duty has been paid on the imported scrap, and thus we find no fault in the findings of the lower authorities that the products manufactured out of imported scrap which has not paid any countervailing duty, was not entitled to benefit of Notification No. 119/66. The plea, that on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to products manufactured out of imported scrap, was wholly enforceable. 12. We also do not find it possible to accept the plea that since proceedings, to determine whether countervailing duty was payable or not, were pending; this demand of duty may be kept in abeyance inasmuch as in case the countervailing duty were held to be payable, then these products, would be entitled to benefit of Exemption Notification No. 119/66. We do not have any indication as to the stage those proceedings were pending, or about the likely result of the same. We, therefore, do not feel inclined to suspend this duty demand which we have found to be fully enforceable on merits. It is for the appellants to safeguard their rights appropriately, while paying the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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