UNION OF INDIA Vs. CIMMCO LTD.

JUDGEMENT

(1.) This appeal under Sec. 35G of the Central Excise Act 1944 (for brevity "1944 Act") at the instance of the Department is directed against the final order No.1238/2009-EX (DB) dtd. 6/10/2009 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).

(2.) The relevant facts are: The respondent is engaged in manufacture of Steel Castings falling under sub-heading No.8607 of the Central Excise Tariff Act, 1985 at their factory situated at Birla Nagar, Gwalior. For the period November 1989 to May 1994; June 1994 to August 1994 and September 1994 to November 1994, the respondent availed the benefit of concessional rate of duty under the said notification dtd. 23/6/1988. Acting on intelligence that the respondent is evading Central Excise duty on cast articles by wrongly availing itself of the benefits of Notification, a team of Central Excise Officers of Headquarters Preventive Branch, Indore visited the unit on 1/2/1994. During the visit, the officers observed that the respondent was engaged in the manufacture of cast articles. They have classified their products under sub-heading No.8607.00 of the Central Excise Tariff Act, 1985 claiming the benefit of concession rate of duty on cast articles under Notification 223/88 dtd. 23/6/88. The team found that the castings/cast articles were subjected to boring, welding and gauging, which being applied to transform the rough castings into specific parts having specific dimensions as per the drawings and not merely to remove surface defects or removal of excess material which being not permissible process in terms of the proviso to the Notification No.223/88, the benefit of concessional rate of duty as per notification would not be applicable. Show Cause Notice, bearing C.No.V(86)15- 1/94/Adj-I/64481 to 486 dtd. 28/9/1994 (read with the Corrigendum bearing even no.70214 to 216 dtd. 9/11/1994 and Addendum bearing even No.63655 dtd. 31/12/1996) was issued to noticee as to why:

(3.) Respective reply were filed. Besides denying the liability, the noticee raised preliminary objection against the show-cause notice. It was urged that in the wake of the provisional assessment, the Show-Cause Notice was premature and that the demand was hit by the limitation.