1997(11)LCX0110

IN THE CEGAT, COURT NO. III, NEW DELHI

Ms. Jyoti Balasundaram, Member (J) and Shri J.H. Joglekar, Member (T)

PANTAGON PLASTIC

Versus

COLLECTOR OF CENTRAL EXCISE, SURAT

Final Order No. 591/97-C, dated 24-11-1997 in Appeal No. E/1003/91-C

Advocated By : Shri Gopal Prasad, Advocate, for the Appellant.

Shri A.K. Madan, SDR, for the Respondent.

[Order per : J.H. Joglekar, Member (T)]. - The appellants were manufacturing articles of plastic such as sheets and tubings. They had claimed, benefit of Sl. Nos. 24, 35 and 38 of Notification No. 132-C.E., dated 1-3-1986. They had filed necessary declarations to the jurisdictional officers for two years, viz., 1986-87 and 1987-88. The entry at Sl. No. 35 of the notification prescribed nil rate of duty to acrylic sheets if manufactured out of materials specified in the entry. On a visit to the unit and on perusal of the invoices, which described the goods as “acrylic sheets made out of cellulose acetate”; the samples were got examined by the chemical examiner. The chemical examiner opined that acrylic plastic and cellulose acetate plastic being categorically different materials, acrylic plastic sheets could not be manufactured from cellulose acetate. After recording evidence, show cause notice dated 18-1-1991 was issued invoking the extended period. The specific allegation was made in the show cause notice that the assessee had made a wilful misstatement with intent to evade duty. The Additional Collector, after hearing the assessee passed the impugned order confirming the demand of duty to the extent of Rs. 75,473.73 and imposing a penalty of Rs. 5,000/- on the assessee.

2. Shri Gopal Prasad, ld. Advocate arguing for the appellants, stated that in the respective declarations, the process of manufacture was very clearly detailed. Two declarations bear certificate of the Sector officer as also the Range officer to the effect that after verification, the particulars were found to be correct and that the exemption was correctly made available. It is his case that since the department had studied the process, it could not be alleged that the assessee had made any misstatement or suppression. It was his case that even in the invoices, the word “acrylic sheets” had been [qualified] as `made from cellulose acetate’.

3. Shri Madan, ld. SDR, on the other hand, supports the order of the Collector.

4. We have carefully examined the facts before us and have seen the notifications and given careful consideration to the arguments advanced by both the sides.

5. As per the show cause notice, the demand is limited for the excess production in the year 1987-88. The relevant notification, as claimed in the declaration pertaining to that year, was 53/88. The entries at Sl. Nos. 26, 32 and 39 were claimed for benefit in this declaration. The entry at Sl. No. 26 pertains to tubes. The one at Sl. 32 exempt cellulose acetate filaments as well as acrylic sheets. Entry at Sl. No. 39 was a residual entry. We find that in the declarations, the various goods manufactured by the assessee were listed but these goods were not aligned specifically to the three entries, the benefit of which was claimed in the declaration. Even the concerned entry No. 32 dealt with two entirely different products, viz., cellulose di-acetate filaments and acrylic sheets. The process of manufacture, as given in the declaration, was worded in very general terms and read as follows :

“The above items are manufactured out of imported duty-paid plastic scrap such as C.A. cuttings, CAB cutting, covered under Customs Tariff Heading No. 3912.10 and 3915.90. The scrap is first segregated, washed, crushed and pellatised by conventional extrusion process. The billets are, thereafter, further converted either into acrylic sheets or lay tubing on different extrusion having specially and adjustments”.

The declaration read with the process of manufacture disclosed that the items manufactured by them were manufactured out of scrap. The declaration does not go beyond that and nothing further can be gleaned therefrom by any manner of reading. The declaration does not support the contention of the ld. Advocate that on perusal thereof and on studying the process of manufacture, the officer should have realised that the scrap imported did not include acrylic scrap. On the other hand, the impression, which the declaration gives, is that appropriate scrap is used for declaration of the listed articles. The chemical examiner is very clear in his finding that the acrylic sheets cannot be made out of cellulose acetate. It is not the case of the assessee that this can be done. The statement of Sh. Nasikar reproduced in the show cause notice mentions that in trade nomenclature these are known as acrylic sheets. The structure of Heading 39 is entirely based on the chemical identification of the various products therein and, therefore, the nomenclature used by the trade (if at all so used) would be of no relevance to their classification. The buyer would be aware that what he was buying were cellulose acetate sheets and not acrylic sheets. On perusal of the declarations and the process of manufacture, we do not find any substance in the ld. Advocate’s plea that full and correct declaration was made therein. We find that the allegation made in the show cause notice that this modus operandi amounted to wilful misstatement does sustain. The extended period, therefore, was correctly invoked. There being no serious contest on merits, we uphold the impugned order and dismiss the appeal.

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Equivalent 1998 (100) ELT 249 (Tribunal)