PATWARI UDYOG Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) These are two appeals filed by M/s. Patwari Udyog and M/s. Krishna Steel Industries against the Order -in -Original Nos. 28/2002 and 26/2002 both dated 8 -2 -2002 respec - lively. As the issues involved in both the appeals are same, both the appeals are being disposed of by one common order.

(2.) Shri R. Santhanam, learned Advocate, submitted that both the Appellants manufacture forged steel grinding media balls; that according to the Appellants these goods were classifiable under Heading 72.08 of the Schedule to the Central Excise Tariff Act whereas the Department wanted to classify them under sub -heading No. 7308.90 of the Tariff; that the Appellate Tribunal vide Final Order No. E 1154 -1157/1998 -B, dated 28 -7 -98 [1999 (112) E.L.T. 142 (T)] rejected their appeals; that, however, the Tribunal vide Misc. Order Nos. 122 -124/99 B -1, dated 22 -10 -99 allowed their applications for rectification of mistake as the issue of time bar was not examined; that the Tribunal remanded the matter to the jurisdictional Commissioner for a fresh decision with regard to the issue of time bar; that the Commissioner under the impugned Order No. 28/2002 in respect of Parwari Udyog has held that demand beyond six months prior to the issue of show cause notice is not sus -tainable; that the Commissioner has, however, rejected their claim for grant of Modvat credit and also the benefit of SS1 exemption without any valid basis or reasons; that the Commissioner ought to have followed the binding decisions of the Courts and Tribunals and he ought to have allowed Modvat credit of the duty paid on the inputs; that similarly he should have allowed them the benefit of SSI exemption/lower rate of duty.

(3.) In respect of Appeal filed by M/s. Krishna Steel Industries, the learned Advocate submitted that the show cause notice dated 15 -7 -1987 was issued to them for demanding duty for the period from 28 -2 -1986 to 31 -3 -1987; that the Commissioner under the impugned Order No. 26/2002 has confirmed the entire demand of duty holding that the Appellants had suppressed the details of goods manufactured and cleared by them. The learned Advocate, further, submitted that they had filed declarations in 1982 in respect of steel balls and as such extended period of limitation cannot be invoked, that Correspondence was also exchanged between them and the Department in 1983 in respect of steel balls, that they had also filed a declaration dated 7 -5 -1986 and accordingly there was no suppression on their part. He relied upon the decision in the case of Blue Max Sports Wear v. CCE, New Delhi, 2002 (143) E.L.T. 581 (T) and Padmini Products v. CCE, 1989 (43) E.L.T. 195 (S.C) wherein it has been held that "failure to pay duty or take out a licence is not necessary due to fraud or collusion or wilful mis -statement or suppression of facts or contravention of any provisions of the Act." Reliance has also been placed on the decisions in the case of Usha Udyog v. CCE, Kanpur, 2001 (136) E.L.T.1031 (T). and Garg Ispat Udyog Ltd. v. CCE, Jaipur, 2001 (136) E.L.T. 918 (T). Finally, the learned Advocate claimed the benefit of small scale exemption and the Modvat credit of the duty paid on the inputs. He also mentioned that the adjudicating authority under Order No. 25/2002, dated 7 -2 -2002 in respect of M/s. Commercial Steels Engineering Corporation has held that extended period of time limit is not invocable since the unit was earlier under exempted sector that the Adjudicating Authority has also extended the SSI exemption.