Laxmi Engineering Works vs Commissioner of Central Excise , Calcutta-II>2000(12)LCX0146

2000(12)LCX0146

IN THE CEGAT, EASTERN BENCH, KOLKATA

Smt. Archana Wadhwa, Member (J) and Dr. S.N. Busi, Member (T)

LAXMI ENGINEERING WORKS

Versus

COMMR. OF C. EX., CALCUTTA-II

Order No. A-2032/CAL/2000 & Stay Order No. S-1509/CAL/2000, dated 12-12-2000 in Appeal No. E/R-550/2000

CASE CITED

Quality Steel Products Pvt. Ltd. v. Collector — 1992(12)LCX0016 Eq 1993 (065) ELT 0513 (Tribunal) — Referred [Para 4]

Advocated By : Shri S.K. Roychowdhury, Advocate, for the Appellant.

Shri V.K. Chaturvedi, SDR, for the Respondent.

[Order per : Archana Wadhwa, Member (J)]. - After dispensing with the condition of pre-deposit of duty amount of Rs. 6,49,708.00 and penalty of equivalent amount, we take up the appeal itself with the consent of both the side

2. The appellants were manufacturing of G.I. Steel Taper Tube (Hamilton Pole) of different sizes and were filing classification list regularly with effect from 1996 onwards claiming the classification of the product under sub-heading 7308.90. All the classification lists filed by the appellants were duly approved by the proper officer. The period involved in the present appeal is 1993-94. effective from 1-4-1993, the appellants again filed the classification list claiming classification of the said product under sub-heading 7308.90. The said classification list was approved by the proper officer on 5-7-1994 under the heading as claimed by the appellants.

3. Thereafter, the show cause notice was issued to the appellants on 23-4-1998 raising demand of duty against them on the ground that Hamilton Poles were properly classified under Heading 7306.90, which is not covered by the Notification 1/93 and as such, the benefit of the Notification has been availed irregularly by the appellants by claiming the classification of the said goods under Heading 7308.90. The said show cause notice was adjudicated by the Commissioner confirming demand of duty and imposing penalty as detailed above.

4. Shri S.K. Roychowdhury, ld. Advocate appearing for the appellants, does not dispute the classification of the product but submits that it is only subsequent to the decision of the Tribunal in the case of Quality Steel Products, subsequently upheld by the Hon’ble Supreme Court that the correct classification was held to be under 7306.90. As such, he is not disputing the classification. However, he submits that the show cause notice having been issued in the year 1998 for the period 1993-94 is barred by limitation inasmuch as the classification lists filed by them with effect from 1-3-1993 was finally approved by the Assistant Commissioner in July, 1994. Drawing our attention to the classification lists, he submits that the description of the goods was very clearly given by them as “....... G.I. Steel Taper Tube (Hamilton Pole of different sizes.” He submits that even the Commissioner has not disputed the above factum of giving the description, but he has rejected their plea of time bar on the ground that the said goods were not structures and by claiming the classification under heading belonging to structures, the appellants have mis-led the Revenue. He submits that the proper officer having approved the classification list, is supposed to have done the same with due application of mind and after making necessary enquiries and verification. In the circumstances, no suppression or mis-statement with intent to evade duty can be attributed to them.

5. Shri V.K. Chaturvedi, ld. SDR appearing on behalf of the Revenue, reiterates the reasoning of the adjudicating authority.

6. We have gone through the impugned order and have considered the submissions made from both sides. There is no dispute that the classification list filed with effect from 1-3-1993 describing the goods as G.I. Steel Taper Tube (Hamilton Pole of different sizes) was duly approved by the proper officer under Heading 7308.90. It is well settled that before approving the classification list, the proper officer is required to check and verify the various aspects of the product manufactured by the appellants and then approve the classification lists. In these circumstances, we do not consider that the appellants have indulged into any suppression or mis-statement of the description of the goods with intent to evade on payment of duty. The case seems to be one and change of opinion as regards the correct classification of the product based upon the judgement given by the Tribunal which cannot justify invocation of longer period against the appellants. Accordingly, without expressing any opinion on the correct classification of the product, we set aside the impugned order and allow the appeal on the point of limitation itself. Stay petition also gets disposed of.

Equivalent 2001 (133) ELT 0754 (Tri. - Kolkata)