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TMI Blog2013 (9) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 - Dated:- 5-9-2013 - Dr. D.M. Misra, Member (J) and Dr. I.P. Lal, Member (T) Shri S.P. Majumdar, Advocate, for the Appellant. Shri S.P. Pal, Appraiser (AR), for the Respondent. ORDER This appeal is filed against the Order-in-Original No. 17/Commr./CE/Kol.II/De novo/Adjn./2006-07, dated 16-5-2006 passed by Commr. of Central Excise, Kol. II. 2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of Rolls, Pusher, Ejector Speed Increaser, Roller Table, Cold Shear, Pinch Roll, etc., and also parts of Rolling Mills. The appellants had submitted a statutory declaration under Rule 173B of the Central Excise Rules, 1944 classifying the said product under the Tariff sub-heading 8455.10 and for parts under the Tariff sub-heading 8455.90 of CETA, 1985. The appellant was issued with a demand notice on 31-12-1998 for ₹ 25,32,554/- alleging short payment of duty on account of misclassification of their aforementioned goods as All goods other than parts under Chapter sub-heading 8455.10 attracting Central Excise duty @ 10% Adv. instead of parts under Chapter sub-heading 8455.90 attracting Central Excise duty @ 15% Adv. fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods other than parts . The ld. Advocate further submitted that the same set of machines were also enclosed with their classification list prior to 16-3-1995 and duly approved by the Department. In support, he has placed before this Tribunal the approved classification list No. 70/RE/HND/R-V/91-92, dated 17-9-1991. Hence, in his submission, the Department is fully aware of the fact that these goods were manufactured and cleared by them prior to 16-3-1995 under sub-heading 8455.00 of CETA, 1985. Thus, there is no misdeclaration, misstatement of description of goods manufactured and cleared by them on payment of duty on the basis of a classification declaration duly filed by them. In support, he has referred to various judgments, which are as follows : (i) Densons Pultretaknik v. CCEx. - 2003 (155) E.L.T. 211 (S.C.); (ii) Tata Iron Steel Co. Ltd. v. Union of India and Others - 1988 (35) E.L.T. 605 (S.C.); (iii) Ballarpur Industries Ltd. v. Union of India - 1994 (74) E.L.T. 795 (Del.); (iv) Shahnaz Ayurvedics v. CCEx., Noida - 2004 (173) E.L.T. 337 (All.); (v) Sumeet Industries Ltd. v. CCEx., Surat - 2010 (259) E.L.T. 152 (Tri.-Ahmd.); (vi) Alpha Lab v. CCEx., Cus., Vadodara - 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills and Rolls therefor as All goods other than parts . The appellants had also declared in Annexure B, to the said declaration the parts as classifiable under Chapter sub-heading 8455.90. The dispute centered around classification of products mentioned at Annexure A as All goods other than parts falling under Chapter sub-heading 8455.10. It is the Revenue s case that the said items being parts of Metal Rolling Mill and Rolls therefor, hence, classifiable under Chapter sub-heading 8455.90 attracting duty @ 15% Adv. It is not in dispute that the appellants had been manufacturing these products earlier classifying the same under the Chapter sub-heading 8455.00 as Metal Rolling Mills and Rolls therefor . The said Heading had been bifurcated in the 1995 Union Budget, which reads as under : 8455.10 - All goods other than parts 8455.90 - Parts 7. The contention of the appellant is that the aforesaid items are machines having independent functions and are used in the Rolling Mills, hence, ought to be treated as Metal Rolling Mills and Rolls therefor and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial character of the complete or finished goods. The Appellants have not adduced any material on record to prove that the goods supplied by them have the essential character of complete Rolling Mills. In view of this, the impugned goods cannot be treated as complete Rolling Mill for the purpose of classification under sub-heading 8455.10 of the Tariff. Accordingly the decision in the case of Flat Products Equipments (I) Ltd. would not be applicable to the facts of the present matter as in the said matter it was not in dispute that the parts when assembled constitute a complete rolling mill. There is no force also in the submissions of the learned Advocate that from the wordings of sub-heading 8455.10 All goods other than parts it means that all goods other than parts of Metal Rolling Mill would be classifiable under sub-heading 8455.10. It is for the reason that the phrase All goods will be restricted to Metal Rolling Mills which is the Heading and goods for being classified under 8455.10 has to be metal Rolling Mill. This view is strengthened when we refer to Heading 84.55 as given in H.S.N, which reads as under :- 84.55 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed reliance on various judgments of the Hon ble Supreme Court and the Tribunal in support of his argument that once there is no change in description of the goods and they have been declaring the items manufactured by them to the Department, then, there is no suppression of facts or any misdeclaration. We find that the Hon ble Supreme Court in the case of Tata Iron Steel Co. Ltd. v. Union of India Others reported in 1988 (35) E.L.T. 605 (S.C.), more or less in similar circumstances, had observed as follows : 7. Regarding the question of limitation, the dispute is whether, assuming that the demand made by the Collector was valid, what is the period to which it could relate, it being common ground that as far as composite units comprising wheels, tyres and axles supplied by the appellant to the Indian Railways are concerned the demand under Item No. 68 of the Central Excise Tariff was justified. The question here is as to whether that demand could extend only to six months prior to the service of the show cause notice as contended by the appellant or up to a period of five years prior to that notice as contended by the respondent. In this regard, Section 11A is the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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