2004 (3) TMI 230 - AT - Central Excise

Tribunal Confirms Gauge Reduction as Manufacture under Central Excise Act; Upholds Duty Demand & Penalties.

The Tribunal upheld the Commissioner's order, confirming that the process of gauge reduction constitutes manufacture under Sec. 2(f) of the Central Excise ... Manufacture - Demand - extended period of limitation - Suppression of facts - Imposition of Penalty - Confiscation of the product - Whether the process of gauge reduction amounts to manufacture u/s 2(f) - HELD THAT:- The appellants did not possess any equipment for straightening and shearing of pattas/patties received for the purpose of undertaking gauge reduction. In the absence of any facilities with the appellants for the purpose of undertaking the process of cold rolling stated in the literature Referred to in the show cause notice, the finding of the adjudicating authority to the effect that the process undertaken by the appellants was process of cold rolling, is erroneous. The evidence tendered by a chartered engineer, K.J. Patel, has also not been considered, wherein he stated that the process being undertaken by the appellants was not cold rolling process. No process resulting in hardening pattas took place during the process of reduction of gauge. It is contended that the appellants did not undertake any activity which amounted to process of manufacture and therefore the product emerging out of reducing the gauge is not a new product. The appellants produced a copy of certificate of posting to show that such a letter was written along with the letter so written. This contention has to be rejected as the appellants failed to produce any evidence that such a letter was received by the department. A certificate of posting does not establish that the letter was addressed to the department unless an acknowledgement of such receipt is produced. The department's contention that the appellant (M/s. I.S.) did manufacture goods in contravention of the Central Excise Rules and Act is thus established. The Commissioner has brought out clearly at page 15 of his order as to how the appellant was aware that the activity carried out at M/s. I.S. resulted in the manufacture of excisable goods liable to duty. They chose not to get themselves registered with an intent to evade duty. Larger period of limitation is therefore invokable. Regarding the penalty u/s 11AC as imposed by the learned Commissioner, we observe that such a penalty is imposable in the facts and circumstances of the case. Regarding penalties imposed on various appellants under Rule 209A, we observe that all the persons involved are aware that they were dealing in goods on which duty at the appropriate rate has not been discharged. The persons on whom penalties are imposed are the ones who got the job work done by M/s. I.S. All the units who got the job work done are managed by either Jignesh Shah or Sheshmal Shah. They are all involved in transporting, removing, dealing in, the impugned goods. They are therefore liable to penalties as imposed by the Commissioner. We see no reason to interfere with this part of the order. The goods produced by the unit were rightly held liable to confiscation. The rolling mills used for production of goods which were removed without payment of appropriate duty are liable to confiscation. The confiscation of the same is also upheld. The duty as demanded is also confirmed. All the appeals are rejected. The order of the Commissioner is upheld. Issues Involved:1. Whether the process of gauge reduction amounts to manufacture u/s 2(f) of the Central Excise Act.2. Classification of the product under the Central Excise Tariff Act.3. Applicability of extended period of limitation for demand of duty.4. Imposition of penalties and confiscation of goods and machinery.Summary:1. Whether the process of gauge reduction amounts to manufacture u/s 2(f) of the Central Excise Act:The Commissioner held that the process of gauge reduction comes within the purview of cold rolling a product and therefore duty has to be discharged on a cold rolled product. The department contended that cold rolling is a generic term applied to the operation of passing unheated metal through rolls for reducing its thickness, producing a smooth dense surface, and developing controlled mechanical properties. The appellants argued that the reduction of gauge does not amount to manufacture as it does not impart superior surface or desired mechanical properties to the product. The Tribunal referred to the Supreme Court's decision in CCE v. Steel Strips Ltd. and concluded that the process undertaken by M/s. I.S. amounts to manufacture, resulting in a commercially distinct product.2. Classification of the product under the Central Excise Tariff Act:The department classified the hot rolled pattas under Chapter Heading 7220.10 and the cold rolled pattas under Heading 7220.20 of CETA during the relevant years, attracting a duty rate of 15% ad valorem. The appellants contended that their product fell under tariff sub-headings 7220.90, 7220.30, and 7220.30 in the respective years, attracting nil rate of duty. The Tribunal rejected this contention, affirming the department's classification.3. Applicability of extended period of limitation for demand of duty:The appellants argued that the extended period of limitation cannot be invoked as there was no suppression of facts with intent to evade duty. They cited a letter written by an adjacent unit to the Superintendent of Central Excise seeking clarification on a similar process. The Tribunal rejected this argument, stating that the appellants failed to produce evidence that such a letter was received by the department. The larger period of limitation was deemed invokable due to the appellants' intent to evade duty.4. Imposition of penalties and confiscation of goods and machinery:The Commissioner imposed penalties on M/s. I.S. and other related parties u/s 209A, and confiscated the finished cold rolled pattas and rolling mills. The Tribunal upheld these penalties and confiscations, noting that all involved parties were aware that they were dealing in goods on which duty had not been discharged. The duty demand of Rs. 1,33,87,791/- was also confirmed.Conclusion:All appeals were rejected, and the order of the Commissioner was upheld in its entirety.