Order
CAs Nos. 7635 and 9516 of 1995
1. The appellants who are manufacturing epoxy-cast components i.e crotch belly, bushing etc. submitted a classification list in the year 1987 for the said articles contending that they were classifiable under Sub-Heading 3926.90 For other articles, namely, insulating fittings for electrical machines, appliances or equipment, being fittings wholly of insulating materials, being manufactured by the appellant, they were classifiable under Heading 85.47 On that classification list the following endorsement was made by the officer concerned:
“The party is engaged in the manufacture of glass-reinforced laminates which are being used as insulating material and is of the view that these are classifiable under Chapter Sub-Heading 8547.00 But the goods are correctly classifiable under Chapter 7014.00 as per Board's clarification vide Letter No. F No. 132/3/87-CC 4 (Circular No. 8187-CC4) dated 6-7-1987. It is therefore requested that the matter may please be considered at a higher level and proper procedure of natural justice may be followed for the finalisation of the classification list.”
2. It is contended that after checking the same, the Department accepted it.
3. Thereafter, a show-cause notice was issued raising demand and for changing the classification. After adjudicating the demands, a penalty was imposed. Hence, the appellants preferred appeals before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (for short “the Tribunal”).
4. Heading 85.47 reads thus:
“85.47 Insulating fittings for electrical machines, appliances or equipment, being fittings wholly of insulating material apart from any minor components of metal (for example, threaded sockets) incorporated during moulding solely for purposes of assembly, other than insulators of Heading 85.46; electrical conduit tubing and joints therefor, of base metal lined with insulating material.”
5. The Tribunal after considering arguments raised by the parties arrived at the conclusion that the goods manufactured by the petitioners were classifiable under Heading 85.47 It was not disputed before the Tribunal that the goods in question were insulated fittings for electrical machines but what was claimed was that these goods were not made wholly of insulating material and to which plasticisers, fillers etc. were added for the purpose of bringing down the cast. This argument was rightly rejected by the Tribunal by considering the wording of Heading 85.47 The Tribunal also relied upon the decision rendered by the Bombay High Court in XL Telecom (P) Ltd. v. Union of India (1994) 70 ELT 530 (Bom) wherein it was held that such goods were classifiable under Heading 85.47 as insulating fittings. It is to be noted that in that case, before the High Court, it was the contention of the Department that such goods, namely, components for cable-jointing kits were classifiable as plastic materials under Sub-Heading 3926.90 of the Customs Tariff Act.
6. The learned counsel for the appellants was not in a position to point out how the said findings of fact recorded by the Tribunal were erroneous. Hence, in our view, the said findings rendered by the Tribunal do not call for interference.
7. The next question is — whether the Tribunal was justified in invoking the first proviso to sub-section (1) of Section 11-A. Prima facie, it is apparent that there was no justifiable reason for invoking a larger period of limitation. There is no suppression on the part of the appellant firm in mentioning the goods manufactured by it. The appellant claimed it on the ground that the goods manufactured by it were other articles of plastic. For the insulating fittings manufactured by it, the tariff entry was correctly stated. The officers concerned of the Department, as noted above, after verification approved the said classification list. This Court has repeatedly held that for invoking an extended period of limitation under the said provision duty should not have been paid, short-levied or short-paid by a suppression of facts or in contravention of any provision or rules but there should be wilful suppression. (Re: Easland Combines v. CCE (2003) 3 SCC 410). By merely claiming it under Sub-Heading 3926.90 it cannot be said that there was any wilful misstatement or suppression of fact. Hence, there was no justifiable ground for the Tribunal for invoking the first proviso to sub-section (1) of Section 11-A of the Act.
8. In the result, the appeals are allowed, the impugned orders passed by the Tribunal are modified. The order imposing the penalty is also set aside. It would be open for the Department to work out and recover the amount payable for the period of six months from the date of the issue of the show-cause notice. Ordered accordingly.
CAs Nos. 2461, 2463-65 and 2471 of 1996
9. These appeals are against the classification of the goods manufactured by the appellant. For the reasons recorded above, it cannot be stated that the classification is in any way illegal or erroneous. Hence, these appeals are dismissed.
10. There shall be no order as to costs in all the appeals.