1985 (4) TMI 311 - AT - Central Excise

Tribunal ruling on excisability of tapes, show cause notices, valuation, penalties

The tribunal confirmed the excisability of recorded magnetic tapes and cassette tapes, rejected the applicability of Notification No. 102/82-C.E. for ... - Issues Involved:1. Excisability of recorded magnetic tapes and cassette tapes.2. Applicability of Notification No. 102/82-C.E. for exemption.3. Time-bar for issuing show cause notices.4. Valuation and quantity of goods.5. Imposition of penalties.Issue-wise Detailed Analysis:1. Excisability of Recorded Magnetic Tapes and Cassette Tapes:The appellants were charged with manufacturing recorded magnetic cassette tapes or spool magnetic tapes without obtaining Central Excise licenses and without paying duty. The defense argued that they were unaware that their activities amounted to manufacturing excisable goods. The tribunal held that the recorded spools/cassettes were indeed excisable as they fell under Item 59 of the Central Excise Tariff Schedule. The argument that the cassettes were useful only to specific persons and not marketable was rejected. The tribunal concluded that the classification under sub-items (2) and (4) was not disputed and the goods were excisable.2. Applicability of Notification No. 102/82-C.E. for Exemption:The appellants contended that their recorded cassettes were exempt under Notification No. 102/82-C.E., which exempts recorded articles from duty if they are not intended for sale or the promotion of sale. The tribunal found that the exemption would not apply to cassettes sold to entities like M/s. Rashtrothana Parishat or India Book House, as these were meant for sale. However, cassettes recorded for advertising or sales promotion material were also not eligible for exemption. The tribunal directed the Additional Collector to reassess the cases to determine the extent of relief under the notification.3. Time-bar for Issuing Show Cause Notices:The appellants argued that the show cause notices were issued beyond the normal time limit of six months. The tribunal noted that the show cause notices were issued under Rule 9(2), which allows an extended time limit of five years in cases of suppression of facts. The tribunal found that the appellants had not informed the excise authorities about their activities and thus constituted suppression of facts. Therefore, the extended time limit was applicable, and the show cause notices were within time.4. Valuation and Quantity of Goods:The valuation and quantity of recorded cassettes were disputed. The Additional Collector had taken the value of a blank C-60 cassette as Rs. 12.50 and added Rs. 1.50 as recording charges, making the total value Rs. 14. The tribunal found this basis reasonable and rejected the argument that the value should be based on the ex-duty assessable value of Rs. 6. Regarding the quantity, the tribunal upheld the Additional Collector's findings after considering the explanations and records provided by the appellants. The tribunal directed the Additional Collector to reassess the number and value of cassettes eligible for exemption under Notification No. 102/82-C.E.5. Imposition of Penalties:The Additional Collector had imposed penalties on the appellants, considering the recent inclusion of recording cassettes in the Central Excise net. The tribunal found that the appellants were guilty of suppression of facts and upheld the penalties. However, the penalties were reduced for M/s. Prabhat Sound Studios, M/s. Prabhat Associates, and M/s. Soundtrek to Rs. 1,000 each. The penalty on M/s. Cadmas Internationals was set aside as they were not manufacturers.Separate Judgment by Member (Judicial):One member dissented, arguing that mere recording of sound on duty-paid magnetic or cassette tapes did not constitute 'manufacture' under the Central Excises and Salt Act, 1944. The member opined that the appellants had not manufactured 'excisable goods' as defined and were not liable to pay the duty demanded or fines levied. The dissenting opinion emphasized the need for legislative clarity on what constitutes manufacture and held that the appeals should be allowed.Conclusion:The tribunal confirmed the orders of the Additional Collector with modifications regarding the applicability of Notification No. 102/82-C.E. and the reduction of penalties. The appeals were rejected, except for the relief granted under the notification and the reduction of penalties.