1997 (3) TMI 327

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....nder Chapter 74 of Central Excise Tariff and availed of the exemption provided under Notification 178/88, dated 13-5-1988. In terms of the said notification exemption from the levy of duty to copper products indicated in the said notification is available only when inputs under chapter 74 were used for manufacture of such products. Classification lists were filed by the assessee regularly indicating the description of the goods produced. In the list at column 10 regarding remarks it is mentioned as 'manufactured out of copper scrap on which duty leviable thereon is paid'. The department issued a show cause notice dated 31-8-1994, in consequence of which the impugned order has been made, indicated proposals among other things - (a) to levy duty on goods indicated in various classification lists; and (b) exemption claimed by the assessee under Notification No. 178/88 dated 13-5-1988 should not be disallowed. 3. At the outset it is relevant to mention here that the adjudicating authority previously issued a show cause notice dated 23-12-1991 charging the appellants that they had alleged to have contravened provisions of Rules 173B/173F/173G(1) read with Rule 9(....

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....tion 178/88. 7. Shri Rohan Shah, the ld. advocate, appearing for the appellants assailed the finding of the adjudicating authority. He argued that the appellants were filing classification list regularly claiming exemption right from 1989. Since they had been accepted how can there be any suppression of facts. He also argued that the appellants factory was subject to visit not only by the Range staff for routine check but also by Preventive and Audit staff. 8. As far as the Notification No. 178/88 is concerned, he aruged that it was not disputed that the inputs were made from copper and articles falling within chapter 74 in terms of the proviso to the notification supra. He invited our attention to the classification lists which read as copper zinc base alloy copper tin base alloy in column 2 thereof which described goods produced by the assessee appellants. He also placed reliance on chapter notes of chapter 74. He also relied on the decisions of the Tribunal in the following cases : Bama Metal Industries v. CCE, Bolpur - 1996 (82) E.L.T. 81 and Siotia Metal Industries v. CCE, Shillong - 1996 (84) E.L.T. 442 (Tri). Shri Shah further added that the departme....

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....ration. 13. The contention that the ingots manufactured were tested for metal contents and composition, does not in any manner absolve the party from the allegation of misdeclaration and suppression of facts. Because by mere testing of final product the department would not come to know that zinc etc. available in final product was added from outside. As the zinc content will invariably present in the waste and scrap and therefore the party has suppressed the fact of adding zinc etc. falling under heading other than Chapter 74 and therefore extended period is invokable and benefit not admissible. 14. We have considered the several contentions and the facts and circumstances of the case. It is undisputed that the appellants have manufactured alloys of copper zinc base and copper tin base. It is also undisputed fact that the nature of the inputs and products have been shown to the department. Let us see the contents of the chapter notes. CHAPTER 74 : COPPER AND ARTICLES THEREOF Notes : In this Chapter the following expressions have the meanings 1. hereby assigned to them : (a) refined copper : Metal containing at least 99.85% by weight of copper....

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....cluding square), equilateral triangular or regular convex polygonal cross-section, which may have corners rounded along their whole length, are also to be taken to be tubes and pipes provided the inner and outer cross-sections are concentric and have the same form and orientation. Tubes and pipes of the foregoing cross-sections may be polished, coated, bent, threaded, drilled, waisted, expanded, coneshaped or fitted with flanges, collars or rings. 2. In relation to products of Heading No. 74.11, the process of drawing or redrawing shall amount to manufacture. SUB HEADING NOTE : In this Chapter the following expressions have the meanings hereby assigned to them : (a) Copper zinc base alloys (brasses) : Alloys of copper and zinc, with or without other elements. When other elements are presents : Zinc predominates by weight over each of such other elements; any nickel content by weight is less than 5% (see copper-nickel-zinc alloys nickel silvers); and any tin content by weight is less than 3% (see copper-tin alloys (bronzes). (b)  Copper-tin base alloys (bronzes): Alloys of copper and tin, with or without other elements are present tin predominates....