TaxTMI 
TaxTMI 
1995 (3) TMI 266
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....e, without due observance of the provisions of Central Excises and Salt Act, 1944 and its Rules, with regard to obtaining licence, filing classification list etc. The Department, as usual, alleging contravention of the provisions of Rules 9(1), 52(A), 53 read with Rule 226, Rules 173B, 173F, 173G, 174 of Central Excise Rules, 1944. The Department has stated that the said goods are classifiable under Chapter sub-heading 7214.90 of Central Excise Tariff Act, 1985; which reads as follows : "72.14. Other bars and rods of iron or non-alloy steel, not further worked than forged, hot-rolled, hot-drawn or hot-extruded but including, those twisted after rolling. 7214.10 - Forged 7214.20 - of free-cutting steel 7214.90 - Other" 2. (i) The appellants do not deny the production of this product but have taken a stand that the process of conversion of hot rolled Bars which are allowed to cool and thereafter, it is twisted on the twisting machine, and thus such an activity does not amount to the process of manufacture and that no new commodity or separate goods arises, notwithstanding the fact that the product is known as CTD....
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.... duty paid on the inputs should have been taken under Rule 56A. It had also mentioned that all the stocks of inputs in the country are deemed to have been duty paid. 4. It is stated that from 1-3-1986, the Central Excise Tariff Act was introduced. Chapters 72 & 73 of the Tariff was identical to the earlier Tariff Item 25. Hence, the Government had continued with the Notification No. 208/83. That the description of the erstwhile Tariff Item 25(9) was identical to Tariff Heading 72.09 of the Central Excise Tariff Act, 1985. Consequently, a simple amendment was effected to Notification No. 208/83 inasmuch as instead of Tariff Item 25(9)(ii), Heading No. 7209.90 was substituted. 5. It is stated that from 1-3-1988, the metal chapters falling under Section XV of the Central Excise Tariff Act, 1985 was fully aligned with the HSN. Consequently, the bars and rods, hitherto covered under Heading 72.09 were spread over three Headings viz. 72.13, 72.14 and 72.15. Consequent to the realignment of the Tariff, Notification No. 208/83 was superseded and in its place Notification No. 90/88, dated 1-3-1988 was issued. It is stated even after the issue of Notification No. 90/88, dated....
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....at Rs. 365/- per MT. It is stated that by Finance Bill of 1989 i.e. from 1-3-1989, the tariff rates for many of the headings were increased. For the bars and rods falling under 7213, 7214.90 (the CTD Bars), 7215.10, 7215.20 and 7215.90 which are referred to in the Notification No. 202/88, the tariff rate was Rs. 600/- per MT. However, by Notification No. 64/89, dated 1-3-1989, the effective rate of duty was fixed at Rs. 500/- per MT. This rate was continued in 1990, by Notification No. 60/90-C.E., dated 20-3-1990. It is stated that the basic inputs for manufacturing the above rods in question viz. ferrous waste and scrap, remelting scrap inputs and iron or steel, iron and non-alloy steel, ingots/billets etc. were suffering duty, at the same specific rates as prescribed for the products in question. Therefore, it is stated that there was no intention on the part of the Govt. to collect duty on CTD Bars. 6. It was specifically urged that the Range Superintendent had visited the factories and the details of the [manufacture] had been collected during 1989. The manufacturers' Association had also given the details of all the factories. Therefore, there was no scope for suppress....
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....the duty, the ld. Collector, has held that larger period was enforceable. Thus, the duties were confirmed besides imposition of penalties under Rule 173Q of Central Excise Rules, 1944. There is also a finding on rejection of Modvat in the order passed by ld. Collector, Bangalore. (ii) The Learned Collector, Chandigarh in the order, dated 29-3-1993 in the case of Aeran Steel Rolling Mills has taken a view that :- "It is nobody's case that the impugned goods manufactured and cleared by the Noticee conformed to the products defined in clauses (ij), (k) or (l) (here the Collector is referring to the definition as appearing in Note 1 of Chapter 72). The indisputable position is that the noticee had manufactured and cleared other bars and rods falling within the mischief of the definition given in Clause (m) of the said Note and the aforesaid bars and rods had also been twisted after rolling. Now the process of twisting after rolling of the other bars and rods does not take them out of the scope of the definition of the term other bars and rods because the definition as given in the Chapter Notes is not only an aid to interpretation but has to be strictly applied wherever the term ....
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....s recorded by me in paras 3 to 3.10, I hereby drop the proceedings initiated against the Noticee vide the impugned show cause notice both on merits and under limitation. Sd/- (Mahesh Kumar) Collector 29-3-1993." (iii) However, on change of the Collector, the proceedings in all other cases were not on the lines adopted by the Collector passing the above order. In all other cases, the Learned Collector took a different view of the matter and has held that the impugned goods were not covered under the notification during the period 20-5-1988 to 15-8-1989. The plea for granting Modvat credit was also rejected and has held that the decision of Jagran Machine Tools v. Collector of Central Excise is misplaced and is distinguishable inasmuch as, the case cited by the Noticees pertained to grant of benefit of provisions of Rule 56A of the Rules, whereas the present case, involves grant of benefit under Modvat Scheme, where filing of declaration for availing credit of the excise duty paid is a statutory requirement under Rule 57G of the Rules. The Learned Collector has also rejected the prayer of time bar. He has also rejected the plea of Classification List being a....
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....he context of the understanding that arises on reading a tariff heading in respect of plain bars. It is his contention that on such an understanding, it has been held that such process of twisting does not amount to a process of manufacture, as in the case of Telangana Steel Industries v. State of Andhra Pradesh as reported in 1994 (73) E.L.T. 513. Relying on para 9 of this judgment, the Learned Advocate submitted that when the Tariff classifies both the items bars and twisted bars in the same Tariff sub-heading then it implies that the legislature has so grouped it, with an intent not to tax the item over again and it also indicates, the legislative intendment, in considering both the bars and CTD Twisted Bars, as one and the same item, without the other emerging out of a process of manufacture and to be considered as separate goods. In this regard, very strong reliance was placed on the Trade Circulars dated 23-9-1975 and 13-9-1978, wherein the department had clearly held and stated that twisting of bar by cold rolling did not amount to a process of manufacture under Section 2(f) of the Central Excises and Salt Act, 1944 and that no new commodity came into existence. He further d....
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....to mean `other than' and hence the terms of Notification : "bars and rods of Iron, non-alloy steel, stainless steel and other than rolled, hot-drawn alloy steel, or hot-extruded or cold-rolled or cold-formed/cold finished/excluding bars and rods plated or coated with zinc and other base metals." should be interpreted to mean that `not further worked' referred to those items appearing in the brackets of the Notifications and also to items on which "further work" is carried on other than specified herein that is "hot rolled, hot drawn, or hot extruded or cold rolled or cold formed/cold finished". Therefore, it was very vehemently argued that the words "not further work" did not refer to "twisted bars" as it fell within the term "cold rolled" and hence, the Notification No. 202/88-C.E., if interpreted in the light of the legislative history, Board's clarification, and in department's inaction in not proceeding to levy duty immediately after issue of Notification No. 202/88-C.E. till the Notification No. 170/89-C.E. was issued; then it follows that Notification No. 202/88 was to cover even to `CTD Bars'. The doubt which was lingering, was clarified by introducting the words "but ....
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....uestion, hence the definition of `other bars and rods' as per Note (m) was required to be applied, while interpreting the terms of the Notification in question. Therefore, it was argued that in any eventuality, the item in question was clearly exempted. Further, strength was also drawn from the terms of the heading, which classified these goods under the previous Tariff Heading 26AA prior to 1-8-1983, Tariff Item 25(1) w.e.f. 1-8-1983, Tariff Heading 72.09 w.e.f. 1-3-1986, and after aligning the Tariff Item to HSN from 1-3-1988, it was classified under Chapter sub-heading 7214.90 and for all these periods, it was exempted under Notification Nos. 152/77, 208/83 and 90/88 respectively. It was argued that as and when the Chapter heading was amended, the corresponding notifications were also issued, exempting the item in question. A mere slip absence of the said crucial wordings "but including those twisted after rolling" in Notification No. 202/88-C.E., had caused this confusion, however, this had been clarified by the Board by circulars referred to earlier, and hence, it was argued that the parties had a clear bona fide belief of the Notification granting the exemption. There were ve....
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....se only at the time when demands would be quantified. The department while quantifying the demands under Section 11A is bound to give deductions to all those items, which are exempted from duty, as well as the Modvat, as Modvat, was introduced to avoid the cascading effect. He submitted that non-filing of declaration is only a procedural failure and it should not come in the substantive right of Modvat deductions, when duty has been quantified under Section 11A. The Learned Counsel read this Section to explain that duty demandable, would mean only that duty which is liable to be paid after granting all available concessions including proforma credit and Modvat deductions. In this regard the ruling of Bombay High Court rendered in the case of Kirloskar Brothers Ltd. v. Union of India & Others, as reported in 1988 (34) E.L.T. 30 was relied, which had laid the rule that proforma credit should be granted irrespective of filing declaration, and the plea as raised here by department was rejected by the High Court. 13. All the other counsels have adopted the arguments ably presented by the Learned Advocate, Shri V. Sridharan. However, each one of them have contributed their part o....
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....ty and the procedure adopted by the Collector is mis-conceived. In this regard he has relied on the ratio of the following rulings : (a) Sales Extrusions (P) Ltd. v. Collector of Central Excise - 1984 (16) E.L.T. 356; (b) Kiran Spinning Mills v. Collector of Central Excise - 1984 (17) E.L.T. 396; (c) Collector of Central Excise v. Kiran Spinning Mills - 1988 (34) E.L.T. 5 (S.C.). (ii) The second point raised is that the amending Notification which was issued subsequently was clarificatory in nature and it has a retrospective effect. In this regard, he relied on the following ratios : (a) Glindia Limited v. Union of India - 1988 (36) E.L.T. 479; (b) Vidharbha Ceramics (P) Ltd. v. Collector of Central Excise - 1985 (20) E.L.T. 326; (c) Super Cassettes Industries Ltd. v. Collector of Customs - 1992 (58) E.L.T. 105; (d) Union of India & Others v. Modi Rubber Ltd. & Others - 1986 (25) E.L.T. 849; (e) H.H. Sri Rama Verma v. Commissioner of Income Tax - 1991 (187) ITR 308. (iii) The next point urged by the Learned Advocate, Shri R. Santhanam is that a mere process of twisting does not amount to manufacture nor....
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....d a liberal view to be taken, while interpreting the Notification. That, the ratio laid down is that benefit of doubt should go to the Revenue as held in the case of Novopan India Ltd., is per incuriam, as the same has been stated without taking into consideration the Larger Bench judgment rendered earlier by the Supreme Court. Hence, Novopan India Ltd., should not be applied. That, while interpreting a Notification, no portion of it should be ignored to make the Notification unenforceable, hence, it was argued that liberal construction should be adopted, for granting the benefit. (vi) The Learned Advocate submitted that the appeals in which he is appearing arose from Chandigarh Collectorate, and the previous Collector had allowed the case of one of the assessee both on merits and on time bar. Therefore, taking into consideration the declarations filed by his party and also RT 12 assessed and classification List approved, there was no question of any wilful default or failure to comply with any procedural requirement. (vii) He submitted that the penalty is not leviable in these cases and the same is unjustified. In this regard he relied on the ruling rendered in the....
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....efore, in the context, it has to be presumed that the Notification No. 170/89 is clarificatory in nature and that the earlier Notification No. 202/88 covered the product in question. He submitted that the Collector had dropped the demand in the four cases namely, Pearl Steel, Surindra Streel, Friends Steel and Kansi Steel. Therefore, taking a different opinion in another set of appeals is totally injudicious. He submitted that in the Appeal E/693/94 the department had issued the notice to the partners who had already left the firm, when the manufacture took place and therefore, the proceedings against them were vitiated. 19. Shri K.K. Anand, the learned Advocate while adopting the arguments of Shri V. Sridharan as well as those of made by Shri Bangoo pointed out to the proceedings which had been dropped by earlier Collector and submitted that a similar view should have also been taken. He submitted that it was for the Collector to have taken a clarification from the Board or from the Government and hence the finding given that as there was no notification was issued under Section 11C and hence, duty is leviable, is not a correct conclusion. 20. Shri P. S. Bedi, the ....
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....r counsels and he further pointed out that as far as their case is concerned, there was voluminous correspondence with the department, and that they had also filed declarations during 1990 and, therefore, the show cause notice issued in November, 1992 is time barred. Despite these facts, the Collector had ignored it and had held that they had suppressed the facts. The Association had also given the clearance figures to the Range Superintendent during 1989 itself. Therefore, when there was a doubt in the department's mind also regarding now dutiability of the twisted bars, then in such a circumstance, the benefit of doubt should go to the Assessee and in this regard, he relied on the judgment rendered by the Tribunal in the case of Punjab National Fertilizers & Chemicals Ltd. v. Collector of Central Excise as reported in 1991 (54) E.L.T. 115 (Tri.) = 1991 (34) ECR 166. 22. Ms. Archana Wadhwa, the learned Advocate adopted the arguments of other counsels and relied on the Modvat statement filed by the parties. 23. The department's case was argued by the learned SDR, Shri R.K. Kapoor and the learned JDR, Shri Somesh Arora. Shri Kapoor submitted that the process of manuf....
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....d. He submitted that the twisted bars are used for construction purpose on account of its strength and therefore, it is distinct goods from ordinary the bars, as also because of its separate commercial understanding. The Notification also indicates that the twisted bar is a separate product and, therefore, the finding given by the lower authorities that twisted bar is a separate manufactured product is sustainable. He further pointed out that Chapter Note (l) refers to hot rolled product, while Chapter Note (m) refers to other bars and rods which has been defined in juxt-opposite to Note (l). The bars which fall under Chapter Note (m) should have uniform solid cross-section and the present item does not have such an uniform solid cross-section and, therefore, it is very clear that a distinction appearing in Chapter Note (m) does not apply to goods in question. He also submitted that the speech of the Finance Minister cannot be looked into for the purpose of interpreting the Notification. It is at best a policy statement. In this regard he has relied on the ruling rendered in the case of B.K. Industries v. Union of India as reported in 1993 (65) E.L.T. 465. He submitted that the fac....
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....manufacturer to file declaration and pay the duty. With regard to the plea that there was wilful suppression of facts, the Learned SDR relied on the following citations : i. Vishwa Industrial Works v. Collector of C. Excise - 1987 (31) E.L.T. 976 ii. Jajmau Dyeing & Proofing Co. v. Collector of Central Excise - 1986 (25) E.L.T. 595 iii. Essco Sanitations v. Collector of Central Excise - 1989 (44) E.L.T. 752 iv. Unik Springs (India) v. Collector of Central Excise - 1985 (22) E.L.T. 456 v. Vee Kay Industries v. Collector of Central Excise - 1990 (50) E.L.T. 520 26. He submitted that there is suppression of facts in these cases and hence, there is justification for imposing penalty. In this regard, he relied on the following rulings: i. Mahendra Radio and TV (P) Ltd. v. Collector of Central Excise - 1988 (35) E.L.T. 668. ii. Creative Cosmetics v. Collector of Central Excise - 1993 (63) E.L.T. 348. 27. As regards the non-grant of Modvat to the appellants, the Learned SDR submitted that the Modvat cannot be given retrospectively. Therefore, the ruling rendered by the Tribunal in the case of Chamundi Steels Rerolling Mill....
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....the item bar is defined in ISI Glossary IS 1956 Part V, 1976 para 2.5 and it becomes obvious from the reading of ISI Glossary that twisted bar will not come within the description and definition of bar of Chapter note (m) as it will have to be round polygons as defined therein. He submitted that the subsequent Notifications are not a clarificatory one and, therefore, the ruling rendered in the case of Instamedic International v. Collector of Customs, as reported in 1994 (4) RLT 149 is applicable to the facts of the present case. He submitted that the compliance of the Modvat provision is a mandatory provision & in this regard, he relied on the ratio rendered in the case of Indian Farmers Fertilizers Co-operative Ltd. v. Union of India as reported in 1995 (75) E.L.T. 218 and General Industrial Society Ltd. v. Collector of Customs, as reported in 1986 (23) E.L.T. 550. The Tribunal is not a court of equity and granting of Modvat in the absence of filing of a declaration by Tribunal, will be beyond its jurisdiction. He submitted that the Hon'ble Supreme Court has denied the grant of benefit, when they had found that there had been substantial non-compliance of provisions of law, as in ....
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....nderstanding prevailed in the minds of the departmental officials as well. Therefore, the expectation of the department that the parties should have filed the declaration, is certainly asking for an impossible condition to be fulfilled today. The Learned Counsel submitted that in a large majority of reported cases, the duty had been quantified after adjusting the benefit of Modvat available to the assessee. He submitted that even in the cases, where there has been no following of procedure and where no licences had been taken, even then the benefit of Modvat has been extended. The citations relied are noted herein below : i. Kirloskar Brothers Ltd. v. Union of India & Others - 1988 (34) E.L.T. 30 ii. Haryana State Electricity Board v. Collector of Central Excise - 1988 (37) E.L.T. 81 iii. Jagraon Machine Tools v. Collector of Central Excise - 1993 (65) E.L.T. 300 iv. Byco International & Others v. Collector of Central Excise - 1993 (49) ECR 126 v. Saphire Steels (P) Ltd. v. Collector of Central Excise - 1994 (71) E.L.T. 1049 vi. Vivek Rerolling Mills v. Collector of Central Excise - 1994 (73) E.L.T. 660 32. He also relied on B....
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....of manufacture. He also submitted that his party had obtained licence and the department had asked them to surrender the same after issue of Notification No. 202/88 and, therefore, their present plea of denial of Modvat is unjustified. He also placed on record, the Board's letter dated 23-8-1973 on this point for consideration. 36. We have carefully considered the submissions made by both the sides and have perused the findings given by the Learned Collectors and have extracted the same also in this order. The submissions made by the parties has also been recorded and we have also noted in great length the entire submissions made by both the sides. We have given our anxious considerations to the various pleas raised before us and have also perused the plethora of decisions cited before us, on the various aspects of the matter argued before us. We are quite impressed with the industry shown by both the sides, to highlight on the various legal facets of the controversy and the assistance given to the Bench in this regard. The points that are required to be considered by us in these cases are :- i. Whether the CTD Bar is a separate marketable commodity, inasmuch as, as....
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....bar are one and the same. This is a matter which requires further deliberation at the level of the original authorities. As stated, in the absence of material, it is not proper for us to dwell on these points. More so, because we are not concerned with the question of classification of this item as both the sides agree that both bar and twisted bar falls under Tariff Heading 7214.90. It was also pointed out that before the Tariff was aligned to HSN, the twisted bars were considered as bars and had been classified under 72.09. It is also admitted by both the sides that this understanding of bar and twisted bar to be classified under the same tariff heading even prior to 1-3-1986, continued in respect of erstwhile tariff also. It is also contended that there had been no distinction made between these two items for decades together. Therefore, in the light of this legislative intent from time to time, and in the absence of any enquiry in this regard, it is not proper for us to go into this question to consider as to whether the twisted bars is a separate goods or not. As can be seen from Heading 72.14 on which both the sides agree for its classification, it is seen that there are thre....
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....Notification No. 170/89 was issued, which gave the scope for the department to rake-up the issue is also not denied on record. The controversy that has been raised before us, is that the wording of the Notification No. 202/88 indicated that on the bars and rods of iron on which further work has been done is excluded from the ambit of the Notification, and that Twisting being a process of manufacture, and a process of further working on plain rods and bars and, therefore, notification excludes twisted bars. Our finding on these findings are as follows : In Notification 202/88, after the words "not further worked", the words following thereafter refers to goods which are covered in the notification namely, "hot rolled, hot drawn and hot extruded or cold formed/cold rolled/cold finished". It is an admitted fact before us by the department, as can be seen from the show cause notices, that the goods have been manufactured after hot rolling and that they are known as CTD Bars, which are twisted after a process of cold rolling and popularly known as TOR Steel. The department is admitting that these bars are obtained by a process of cold rolling and it is known as twisted deform bars (C....
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....on" either hot rolled, hot drawn or hot extruded or cold formed/cold finished are exempted from duty. It has been shown by the appellants that the goods have come into existence by a process of cold formed/cold finished, after it is hot drawn. Both hot drawn and cold finished are exempted from the ambit of the notification. Now the question is as to whether this twisting is "further worked" or not, and thus excluded from the Notification. The answer to this can be found from the items referred to in the bracket, which refers to the excluded items, namely, "excluding bars and rods plated or coated with zinc and other base metals". In the light of the department's admission that these goods are hot drawn and, thereafter it is cold formed and cold finished and referred to the CTD Bars, they satisfied the terms of the wordings, which grants the exemption. The conclusion to be drawn that CTD Bars are "not further worked", is on the basis of the legislative intent, which has been shown to us, and also because the items having been exempted earlier and subsequent to this Notification. It is also because of the understanding held by the department and the trade notice and circular issued i....
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.... to the facts of this case and in the light of the findings arrived at by us. Therefore, we accept the plea of the appellants in this regard. The rulings relied by the appellants with regard to the Notification being clarificatory one and to be treated as retrospective is applicable to the facts of the present case, especially the ruling rendered in the case of Shaw Wallace (supra), which has been followed in the case of Super Cassettes Industries (supra). iv. Whether the parties are entitled for Modvat benefit? On this issue the Tribunal has given a detailed findings in the earlier cases arising on this issue as cited before us. In all the cited cases on this issue, the Tribunal has held that in the facts and circumstances of the case, Modvat benefit is required to be extended. The Tribunal has also taken into consideration the practice of considering the grant of Modvat of Iron and Steel products, and also on the prevailing practice of treating the inputs as "deemed to have been duty paid". The Learned Collectors have refused to accept this finding, but have chosen to differ from the same. This is not a correct approach to have been followed as the Learned Collectors are bo....
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....irements of this notification. We, therefore, hold that in quantifying and demanding the duty the benefit of Notification No. 201/79 so far as could be made out by acceptable evidence ought to be granted." Bombay High Court in the case of Kirloskar Brothers Ltd. v. Union of India and Others reported in 1988 (34) E.L.T. 30 (Bom.) in para No. 8 had held as under :- "8. The excise duty payable was determined at Rs. 1,95,682.00, by the Central Excise Authorities. We are told that the petitioners had paid excise duty on the compressors fitted in the air conditioners. This fact has not been disputed by Shri Desai. Shri Desai, however, stated that if the petitioners wanted to take credit for the excise duty paid on the compressors they would have to follow a particular procedure prescribed under the Act and Rules which they admittedly did not follow. In our opinion, this submission of Shri Desai does not hold water. The case of the petitioners has all along been that they were not engaged in the manufacture of air conditioners, and, therefore, no excise duty, fine or penalty was payable by them for the contravention of the provisions of the Act and the Rules. Moreover, it is....
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....em and not to those who had not filed the declarations and in their cases demands for larger period is required to be confirmed, is not a sound argument and we do not see any reasonableness at all. The fact that the department has directed the assessees to get their licences cancelled, is a pointer to the understanding about that the Notification in question being extendable to CTD Bars as well. There are number of trade circulars and trade notices issued by the department, clarifying that Twisting does not amount to manufacture, about the availability of duty exemption, besides availability of Modvat, and deem credit facility to the inputs purchased from market. Therefore, the pleas raised by the appellants with regard to the time bar is very reasonable and acceptable. Such a view held by the department has also been brought out by the Collector, Chandigarh, whose finding has already been incorporated (supra). The ld. Collector, Chandigarh has allowed the appeal of M/s. Aerson Steel Rolling Mills on merits as well as on time bar and the said finding is a clear pointer to the understanding of the department. Therefore, there was a bona fide belief held by both the parties as well t....