ASIAN EQUIPMENTS Vs. CCE

JUDGEMENT

(1.) This appeal arises from order -in -original No. 8/90 dated 19.2.1990 passed by the Collector of Central Excise, coimbatore, confirming duty demand of Rs. 7,01,999.10 in terms of Rule 9(2), of the Central Excise Rules with Section 11A of the Central Excise Rules. He has also imposed a nominal penalty of Rs. 1000/ - in terms of Rule 9(2) and 173Q of the CE Rules. The appellants were issued with a Show Cause Notice dated 11.7.1989, alleging that they had violated various provisions of Central Excise rules in as much as they had manufactured and cleared the stainless steel drums and covers for wet grinders (parts of domestic electrical appliances) falling under chapter sub -heading 8509.00 from 1.4.1986 to 12.1.1989, without taking Central Excise license and without payment of duty to the extent indicated above. The Annexure to the SCN showed the value of clearances for three years. For 86 -87 the value of clearance shown is Rs. 15,56,061.00; for 87 -88 the value of clearance shown is Rs. 11,91,636.00 and for the year 88 -89 the value of clearance shown is Rs. 10,11,710.00. The appellants took a stand that they were exempted from payment of duty in view of the fact that their total clearances were less than Rs. 15 lakhs, in terms of notification No. 77/85 dated 17.3.1985 as well as by notification No. 175/86 dated 1.3.1986. They also contended that the item was not classifiable under sub -heading 85.09 but was classifiable only under sub -heading 8485.09 with lesser amount of duty. The commissioner did not agree with the appellant's contention and noted that they are not entitled to the benefit of the notification as they had not obtained the registration certificate and also had not registered themselves with the Central Excise Department. He has also rejected the claim for classification under 8485.09. Hence, this appeal.

(2.) Ld. Consultant Shri. Swaminathan, pointed out that the clearance figures for the respective years were all within the exemption limit under the respective notifications. It is his contention that non -registration with the department is no ground to deny the benefit of the eligibility of the exemption notification. In this regard, he relied on the Judgment rendered by the Tribunal in the case of in Vikram Laminators Pvt. Ltd. v. Collector of C. Excise, Aurangabad reported . He pointed out that this Judgment has been rendered after taking into consideration the previsous rulings of the Tribunal. He also relied on the Judgment rendered in the case of Heemanshu Traders and Ors. v. CCE, Surat reported in 2003 (86) ECC 599 (Tri.) : 2003 (108) ECR 124 (T) on the same proportion. He further submitted that the same view had been expressed by the Tribunal in the case of Collector of Central Excise v. Atlas Radio and Electronics Pvt. Ltd. Reported in . He further submitted that the classification of the product wet grinder has been held to be under 85.09 by the Tribunal in the case of Santha Industrials v. CCE . He submits that the parts of wet grinder would therefore fall under 85.09 of CE Act. He submits that this view on classification was also upheld by the Madras High Court in the case of CCE v. Alco Industries . He further submits that as the duty liability does not arise as clearances were less than Rs. 15 lakhs for each year, therefore, no duty liability arises for confirmation.

(3.) Ld. DR Shri Devaludu reiterated the Commissioner's findings.