GARDEN SILK MILLS Vs. COLLECTOR OF C. EX.

JUDGEMENT

(1.) IN this appeal filed by M/s. Garden Silk Mills Ltd. the matter relates to the classification of the design punched jacquard cards (hereinafter referred to as the "Cards') - Such cards were used in the weaving department on jacquard looms for weaving jacquard dobby fabrics which had designs on the body of the fabrics. They were alleged to be classified under sub -heading No. 4823.90 of the Central Excise Tariff under show cause notice dated 19 -2 -1992. The Collector of Central Excise, Surat, who adjudicated the matter referred to Note 9 and Note 10 in Chapter 48 of the Central Excise Tariff wherein it was provided that Heading No. 48.23 of the Central Excise Tariff applied inter alia to perforated paper or paperboard cards for jacquard or similar machines. Prior to 1 -3 -1988, the cards were classifiable under sub -heading No. 4818.90, and from 1 -3 -1988 onwards they were classifiable under sub -heading No. 4823.90. With regard to suppression, wilful statement and withholding of information to invoke extended period of limitation, he observed that the assessee had not filed the classification list; there were no documents to know of the operations in this regard and it was only when the officers of the Department visited the unit that they could know about the manufacturing of the said cards. The adjudicating authority noted that the Central Excise Tariff under Chapter 48 clearly brought out that the punched Jacquard Cards were classifiable under Heading No. 48.23. He imposed a redemption fine of Rs. 1,000/ - and confirmed the duty liability of Rs. 436045.81 and imposed a penalty of Rs 2 lakh.

(2.) THE matter was heard on 4 -11 -1999 when Shri J.M. Sharma, consultant, appeared for the appellants. Shri V.M. Udhoji, DR, represented the respondent/Revenue.

(3.) SHRI J.M. Sharma, consultant, admitted that there was no dispute about the classification of the punched Jacquard Cards which had since been settled by the Tribunal's decision in the case of Shri Dinesh Mills Ltd. v. C.C.E., Baroda, 1999 (105) E.L.T. 308 (Tribunal). He, however, submitted that the appellants had no intention to evade payment of duty. The period involved is May, 1987 to August, 1991. The visit was paid by the Central Excise Officers on 23 -8 -1991 and that prior to the Trade Notice No. 83/91 -C.E., dated 13 -9 -1991, the matter was not clear. The show cause notice was issued on 21 -2 -1992. He relied upon the Supreme Court decision in the case of Padmini Products v. C.C.E., Bangalore, 1989 (43) E.L.T. 195 (S.C.); Pushpam Pharmaceuticals Co. v C.C.E., Bombay, 1995 (78) E.L.T. 401 (SC); and Siechem v. C.C.E, Chennai, 1999 (30) RLT 207 (Tribunal). He pleaded that in any case the penalty of Rs. 2 lakh was excessive.