KISHAN METAL INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The assessee challenges the order passed by Commissioner of Central Excise, Delhi -II confirming the duty demand of Rs. 30,26,286/ - and imposing penalty of a similar amount.

(2.) The appellant is engaged in the manufacture of various articles of steel and aluminium such as, upper hinge, lower reinforcement, clamp accumulator, pin valve guide, aluminium washer, evaporator back plate, reinforcement for water collecting pan etc. These goods were supplied to M/s. Kelvinator India Ltd. (at present Whirlpool India Ltd.) who thereafter used the same in the manufacture of refrigerators in the factory. In the classification list submitted by the appellant articles of iron and steel were classified under sub -heading 7326.19 and articles of aluminium under sub -heading 7616.10. While filing the classification declaration the appellant had declared the description of the above items. They also filed RT 12 Returns with the Department and in all these Returns, the description of the products was given as was shown in the invoices placed by the buyers. Along with RT 12 Returns the appellant had enclosed the invoices under the cover of which the goods were sold to the buyers. While so, a show cause notice dated 1 -9 -2002 was received by the assessee proposing to reclassify the above goods under Chapter 84 as parts of refrigerator. The extended period of limitation was invoked on the allegation of suppression and misdeclaration. The Commissioner confirmed the proposal in the show cause notice.

(3.) The learned Counsel for the appellant submits that there was no suppression of or misdeclaration on the part of the assessee. All the relevant details of the goods cleared were given in the declaration along with the classification list and RT 12 Returns. The department has no case that it has come across any other document which would show that the assessee has suppressed any relevant fact or that it has misdeclared the goods. Under these circumstances, the show cause notice issued invoking the extended period of limitation is unsustainable in law. On the other hand, the learned DR would contend that the assessee had not referred in its declaration that the goods are being cleared are used in the manufacture of refrigerator. At no point of time the department was informed that these goods were being utilised in the manufacture of refrigerator.