KONARK CYLINDERS Vs. COMMR. OF C. EX., BHUBANESHWAR

JUDGEMENT

(1.) AFTER hearing both the sides we feel that the present appeal can be disposed of on the short point of limitation.

(2.) DUTY of Rs. 2,27,869/ - has been confirmed and penalty of Rs. 25,000/ - has been imposed by the adjudicating authority by observing that end cuttings and steel side cuttings of the steel sheet out of which LPG cylinders are cut cannot be considered as waste and scrap classifiable under sub -heading 7204.90 and the same have to be classified under heading 7208.90. The period involved in the present appeal is from 1 -4 -1988 to 29 -2 -1992 and the show cause notice was issued in November 1992 admittedly beyond a period of six months. It has been contended before us that the classification lists filed by the appellants throughout these years describing the product as steel scrap was approved by the proper officer under heading 72.04. Apart from this our attention has also been drawn to another order dated 25 -1 -1991 passed by the Asstt. Collector of Central Excise, Cuttack in the case of M/s. Subarban Industries (Kalinga) (P) Ltd., BBSR wherein resolving the dispute of classification in respect of end cuttings and side cuttings the said adjudicating authority held the same to be classifiable under sub -heading No. 7204.90. Shri Mohanty submits that the said industrial unit and their factory falls under the jurisdiction of the same division office and the same Asstt. Collector. Even the range office is the same. As such the orders passed by the Asstt. Collector having jurisdiction over their factory in respect of another factory similarly situate strengthened their view and belief that the end cuttings and side cuttings are classifiable as waste and scrap under heading 7204.90. In these circumstances he submits that there was no wilful misstatement or suppression on their part so as to justifiably invoke the larger period of limitation. Shri Mohanty also submits that they were also served with an another show cause notice on 5 -8 -1992 for change in the classification of the said end cuttings and side cuttings. While passing order on the said show cause notice, the Asstt. Commissioner held that the same were properly classifiable under 7211.49, but he observed that the earlier approval is accordingly prospectively modified w.e.f. the date of show cause notice. From this Shri Mohanty submits that it is an admitted position even by the department that the classification lists were duly approved and they were modified only w.e.f. 5 -8 -1992 by the Asstt. Commissioner.

(3.) COUNTERING the arguments Shri R.K. Roy, ld. JDR reiterates the reasoning of the authorities below and submits that the appellants have not given proper and complete description of the product in the classification lists submitted by them. They have wrongly classified the cuttings as waste and scrap and claimed the classification under heading 7204. They also never declared that the side cuttings and end cuttings are used further in the manufacture of other items.