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indo Metal Industries Vs. Collector of C. Ex. - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1989)(43)ELT784TriDel
Appellantindo Metal Industries
RespondentCollector of C. Ex.
Excerpt:
.....as an appeal, raises question of classification of goods described as "copper coated submerged arc welding wires", cleared from the factory in coils.2. the proceedings emanated as a result of seizure of s419 kgs. of the above said product in 339 coils; the department being of the vie that they were classifiable under item 50 of the central excise tariff (hereinafter referred to as the cet). proceedings were thus initiated on the allegation that manufacturing activity in relation to ex cisable goods had been carried on without observance of the central excise formalities and without obtaining proper licence. the party's plea, however, was that the goods did not fall within the definition of "welding electrodes", and they were merely receiving welding wires from other parties for doing.....
Judgment:
1. This Revision Petition, since received by transfer, pursuant to the provisions of Section 35P(2) of the Central Excises & Salt Act, 1944, to be treated and disposed of as an appeal, raises question of classification of goods described as "copper coated submerged arc welding wires", cleared from the factory in coils.

2. The proceedings emanated as a result of seizure of S419 kgs. of the above said product in 339 coils; the department being of the vie that they were classifiable under Item 50 of the Central Excise Tariff (hereinafter referred to as the CET). Proceedings were thus initiated on the allegation that manufacturing activity in relation to ex cisable goods had been carried on without observance of the Central Excise formalities and without obtaining proper licence. The party's plea, however, was that the goods did not fall within the definition of "welding electrodes", and they were merely receiving welding wires from other parties for doing electroplating and recoiling on job basis and the goods were returned to the respective customers after the job had been done, and the processes which they undertake did not convert the said wires into welding electrodes so as to attract T.I. SO of the CET to these goods.

3. The notice to sho cause was, however, confirmed by order of the Deputy Collector of Central Excise, Calcutta dated 20-9-1976/30-10-1976, reiterating the Department's stand that these goods were classifiable as "welding electrodes": all sorts". Besides holding that duty would be leviable as specified under T.I. 50 of the CET, confiscation of the seized goods was also ordered and penalty of Rs. 500 imposed. An option, for redemption of the goods against payment of Rs. 1,000 was, however, recorded.

4. The appeal carried by the party against this order to the Appellate Collector of Central Exicse was dismissed on 24-3-1979, whereby order of the Deputy Collector was maintained in its entirety, and the goods held classifiable under T.I. 50 of the CET.5. In this appeal, the finding of the lower authorities were assailed, pleading, inter alia, that the lower authorities erred in holding the goods liable to excise duty as falling under T.I. 50 of the CET.Besides, the plea, that the appellants were merely undertaking job work and no process of manufacture was carried out, it was specifically pleaded that they were only doing the job of copper-coating of the wires received from M/s. Poonam Trading Company and Indian Oxygen Ltd. and that they were neither aware nor did they believe that these wires, after copper coating, become excisable. They further pleaded that although the notice to sho cause had indicated that in the Department's tentative vie goods were classifiable under T.I. 68 but in the final adjudication order as well as the appellate order, they had been held classifiable under T.I. 50 and that consequently, they have been deprived of the opportunity to sho that the goods were not covered by T.I.50 of the CET.6. On the appeal being taken up for hearing, Shri N.C. Sogani, Consultant appeared for the appellants whereas for the respondent, Shri K.D. Tayal, SDR was present. At the outset, Shri Sogani submitted that identical goods were subject matter of two appeals, which have been decided by this Bench upholding the contention that these goods described as "submerged arc welding wires" were not classifiable under T.I SO of the CET. A true copy of the Order-in-Appeal, relating to said appeals; being Appeals No. 370/80-D and 554/80-D disposed of by Orders No. 504 & 505/83-D dated 18-8-1983 was placed on record.

7. Shri K.D. Tayal, SDR conceded that the goods which are subject matter of this appeal, are of the same nature and description as in the other two appeals, referred to by the learned Consultant. He had no further comments to offer in relation to the prayer made on behalf of the appellants that the same result may follo in this case.

8. In vie of the admitted position of both the parties that the goods involved in this case are the same as were the subject matter of the two appeals referred to above, copies whereof have been taken on record, and in vie of the fact that no further arguments have been offered in this case, we go by our earlier decision in the said appeals, and dispose of the present appeal on the same terms. In the result the present appeal is allowed to the effect that the said wires do not fall under T.I. 50 of the CET and in the consequence, the duties demanded from the appellants and the penalty imposed on them as well as order of confiscation of the goods seized from them, are all set aside.

This order, however, would be without prejudice to Department's right to consider alternative classification for these goods, with reference to T.I.26AA(ia) or T.I.68, which question we leave open to be decided in the light of ne facts that may be placed and proved on record:


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