CONTAINERS CORPORATION Vs. REGISTRAR THE CUSTOMS EXCISE AND GOLD CONTROL APPELLATE TRIBUNAL NEW DELHI

JUDGEMENT

(1.) -This appeal has been preferred by the appellants under S. 35-L (b) of the central Excises and Salt Act, 1944 against the Order in Appeal No. 215/1984-D dated 12/04/1984 passed by the Customs, Excise and Gold (Control) Appellate tribunal, New Delhi. The question involved in this appeal is about the rate of duty of excise for the purpose of assessment.

(2.) The appellants are a partnership firm registered under the Indian Partnership Act and are engaged in the activity of manufacturing metal containers. According to the appellants, they started manufacturing metal containers in the year 1974. On 30/12/1976 they surrendered their licence and switched over to manufacture of metal containers without the aid of power so as to be eligible to the exemption under Tariff Notification No. 94 of 1970 dated 1/05/1970.

(3.) It is alleged that on 27/11/1980, the seaming machine appeal under S. 35-L (B) of the central Excises and Salt Act, 1944 against the judgment and Order dated 12/04/1984 of CEGAT, New Delhi in Appeal No. ED (68) 100/83-D Order No. 215/1084-Dlying in the factory of the appellants was jammed and therefore a technician Shri Amar Singh Yoddha was called in to remove the jam. This technician advised that the jam could be removed only by giving a jerk by coupling the machine with an electric motor and therefore an electric motor was fitted on to the jammed machine and about this time the officers of the central Excise Department conducted a surprise inspection and seeing the electric motor fixed on the machine drew an inference that the said machine was being worked with the aid of power. A memorandum was drawn up and the statement of Shri Purshottam Parikh, one of the partners of the appellants was also recorded. By letter dated 29/11/1980, the appellants informed the Collector of the circumstances in which the motor was brought in and fixed on the seaming machine. A notice dated 19/05/1981 was however issued to the appellants to show cause as to why duty should not be charged from them on the ground that the metal containers were being manufactured with the aid of power. A reply was submitted by the appellants and the matter was heard on 25/02/1982. The Investigating Officer was cross-examined and witnesses gave evidence and after concluding the enquiry, the Collector passed an order imposing a fine of Rs. 10,000. 00 in lieu of confiscation and a penalty of Rs. 50,000. 00 and ordered appropriate leviable duty to be paid on the containers alleged to have been manufactured and removed during the period 1/05/197 9/11/1980.