Case ID: 5980

Judgment:
ivil Appeal No. 223 of 1989. From the Judgment and Order dated 31.10.88 of the Cus toms Excise and Gold (Control) Appellate Tribunal	 New Delhi in Appeal No. E. 12068/84 BI (Order No. 432/88 BI). Soli J. Sorabjee	 A.N. Haksar	 Ravinder Narain	 P.K. Ram and D .N. Misra for the Appellant. The judgment of the Court was delivered by SABYASACHI MUKHARJI	 J. This is an appeal under section 35 L of the Central Excises & Salt Act	 1944 (hereinafter referred to as 'the Act '). against the order dated 31.10.1988 passed by the Customs	 ExciSe & Gold (Control) Appellate Tribunal (hereinafter referred to as 'the Tribu nal '). The issue involved in this appeal mainly relates to the classification of the goods	 namely	 whether the products of the appellant in this case were end fittings or nuts? The question was whether the goods were classifiable under Tariff Item 52 or Tariff Item 68 of the erstwhile First Schedule to the Act. The appellant applied for requisite central excise licence for manufacture of goods falling under Tariff Item 68 and for the purpose of such goods L 4 licence was also furnished	 and also the requisite ground plans of the facto ry showing the requisite sanction of the factory in which the various goods were manufactured. The excise authorities granted L 4 licence. The appellant contends that the same was done after verifying the ground plans. Necessary classi fication list was supplied on 22nd March	 1979 for approval by the excise authorities and the appellant claimed benefit of exemption of notification No. 89/79 Central Excise dated 1.3.79. The said classification list submitted by the appel lant was approved by the Assistant Collector of Central Excise by his letter dated 25th May	 1979. For the period from 1.4.79 to 30.6.79	 the appellant filed his RT 12 for the assessment	 which was also finally assessed without any protest or objection. Inasmuch as	 the appellant claimed that its goods were wholly exempted by virtue of the notifi cation No. 89/79CE dated 1.3.79	 the appellant wrote to the Superintendent of Central Excise asking for dispensation from filing RT 12 every month. The Superintendent by his order informed the appellant that it need not file RT 12	 but should inform 874 the Excise Department monthly by means of a simple letter the total clearance effected in the month in question. Thereafter	 the appellant submitted classification lists in 1980	 1981 and 1982 in respect of the said goods and claimed the benefit of the exemption under notification No. 105/80 Central Excise	 dated 19.6.80	 which was a subsequent noti fication. The Assistant Collector of Central Excise duly approved the said classification lists. It is stated that the Central Excise Officers attached to the Preventive Branch visited on or around 13.7.82	 the factory of the appellant and examined the products manufactured by the appellant. The excise authorities once again	 it is stated	 visited the factory of the appellant on 20th July	 1982. However	 on 17th .January	 1983	 a show cause notice was issued to the appellant asking it to show cause as to why excise duty should not be demanded under Tariff Item 52 in respect of 14	88	838 pieces of nuts manufactured and removed by the appellant during the period 1st April	 1981 to 19th July	 1982 without payment of appropriate excise duty there on. It was further stated in the show cause notice to show cause why penalty should not be imposed on the appellant for failing to obtain the requisite L 4 licence under Tariff Item 52 in respect of the said goods and for failing to file price lists and classification lists in respect thereof and further to show cause why the material seized on 26th Au gust	 1982 should not be confiscated. The appellant showed cause	 and drew attention to the Indian Standard Institution publication for specification of High Pressure Connection meant for lubricating arrangement of oil in Fuel Injection Equipment for Diesel Engines which according to the appel lant	 showed that the goods in question were not nuts but end products or connectors for lubricating purposes and as such were integral parts of the Diesel Engine Pipes falling under Tariff Item 68. On 16th July	 1984	 the Collector of Central Excise passed orders holding that fittings were nuts classifiable under Tariff Item 52 and that appropriate duty on the clear ances effected by the appellant during the period 1st April	 1981 to 19th July	 1982 should be paid	 and that the seized goods were liable to confiscation but in lieu thereof a redemption fine of Rs.4	000 could be paid within three months	 the exports effected indirectly by the appellant were not entitled to benefit of Notification No. 89/79 CE and	 therefore	 the differential duty in respect of those clearances was payable under Tariff Item 68 and that the show cause notice was not barred by time. The Collector	 accordingly	 imposed a penalty of Rs. 1 lac. Aggrieved thereby	 the appellant went up in appeal before the Tribunal. The Tribunal partly allowed the appeal of the appellant and 875 partly upheld the order of the Collector. So far as the question of classification of the different fittings was concerned	 the Tribunal held that the classification should have been as nuts under Tariff item 52 of the Central Excise Tariff. The Tribunal also held that the appellant was guilty of suppression and therefore rejected the submission of the appellant that the show cause notice was barred by time. The contention of the appellant in respect of the benefit of exemption being available to the extent of export effected indirectly on the basis of the earlier decision of the Tribunal	 was accepted by the Tribunal and the order of the Collector was modified to that extent. The Tribunal also reduced the amount of penalty imposed by the Collector from Rs. 1 lac to Rs.50	000. Aggrieved thereby	 the appellant is in appeal before this Court. The first contention that was agitated before us and which was decided against the appellant in the order of Tribunal is	 whether the goods in question involved in this appeal were classifiable under Tariff Item 52 of the Central Excise Tariff or whether these goods were classifiable under Tariff Item 68. The Tribunal noted that these goods were described as 'nuts ' by the Consultant on behalf of the appellant in the arguments submitted before the Tribunal. The appellants were purchasing nuts	 both threaded and unthreaded	 and the latter being threaded	 this was to be taken for captive consumption. Therefore	 it was contended on behalf of the appellant that the function of such nuts was not merely fastening but also facilitating the flow of oil under high pressure without leakage. It was emphasised that these nuts were leak proof. The Tribunal on appraise ment of all the materials	 held that these were nuts manu factured by the appellant. It was evident from the Tribu nal 's judgment that the appellant was itself purchasing	 both threaded and unthreaded nuts as such and the unthreaded nuts were threaded by the appellant. Apart from captive consumption	 some of these nuts were also sold as nuts to outside parties. These facts were found by the Tribunal and recorded in its order. The Tribunal in those circumstances was of the view that it was difficult to accept the appel lant 's contention. The impugned goods were commercially known and bought and sold as nuts. It is true that specifi cation of the Indian Standard Institution was drawn atten tion to. But there was evidence	 as noted by the Tribunal	 about the commercial indentify of these goods. If these goods not being defined as such and are commercially known as nuts	 as found by the Tribunal then	 in our opinion	 such finding cannot be said to be wrong or perverse. Such finding was arrived at after giving opportunity to both the parties and considering all relevant materials. Such finding cannot be assailed in this appeal. 876 The functional approach to the identify of the goods as canvassed by the appellant was also duly considered by the Tribunal. It was contended that the function of the nuts was not only to fasten but also to enable the flow of oil under high pressure without leakage. But the Tribunal noted that the flow of oil is possible only after nuts are fastened. To that extent	 according to the Tribunal	 it can be stated that nuts permit the flow of oil without leakage. The ques tion is	 however	 not as to what is the process facilitated as a result of the nuts	 but the question which the Tribunal itself posed is whether the nuts are fasteners or do they have any other 'independent function? The Tribunal found that it had not been shown before them that they had any such independent function. To say that these nuts are leak proof	 was only to reiterate the fact of their essential character and quality as fasteners and not to substantiate any argument as regards their independent function. In that view of the matter	 the Tribunal even taking the functional approach to the identity of the goods	 came to the conclu sion that the goods in question were properly classifiable as nuts. That conclusion of the Tribunal cannot be assailed in appeal in view of the evidence on record as noted before. Certain decisions were referred to before the Tribunal by the appellant in support of its contention that in certain cases goods of these types had not been considered to be nuts. These goods	 as the Tribunal noted	 were in the nature of bolts	 nuts and rods of special type manufactured by a particular party. Therefore	 these were not classifiable as merely bolts and nuts under Tariff Item 52 of the Central Excise Tariff	 but as integral parts of the machine for which they were specifically designed with a distinct and specific function in the operation of the motor cycle of which these were components parts. It was held in those cases that the components manufactured solely on the orders of the buyers	 as per their drawings and specifications	 were components of mining and project machinery and	 there fore	 not classifiable under Tariff Item 52 CET	 But the facts involved in these items of goods in the instant case	 dealt with by the appellant	 are different. These goods were not manufactured according to any special specifications as integral parts of machinery. Some of these nuts required were also purchased from market ' while those being manufac tured were also sold to outside buyers as nuts. Attention of the Tribunal was also drawn to the case of M/s. Precision Fasteners Ltd. vs Collector of Central Ex cise	 Bombay II. In that case	 however	 the Tribunal did not take any final view on the product. In view of the type of goods involved in that case	 the Tribunal had remanded the matter for re adjudication. In that view of 877 the matter	 the Tribunal was of the view that the commercial identify of the goods in the instant case	 was different from the goods involved in the Precision Fasteners Ltd. 's case (supra). In the light of these submissions	 the Tribu nal came to the conclusion that the goods were classifiable under Tariff Item 52 of the Central Excise Tariff. It was this finding which is assailed before us in appeal. We find	 however	 as noted hereinbefore	 no cogent ground to sustain any challenge to the aforesaid finding of the Tribunal. The Tribunal has considered all the relevant evidence. The Tribunal has not ignored any relevant piece of evidence. It had applied the correct principle of law ap plicable to the determination of this question. It had also applied the test of commercial identity of the goods and examined the matter from the angle of the conduct of the appellant. In that view of the matter	 we are of the opinion that these findings of the Tribunal cannot be assailed. The next question that has to be determined is whether the claim for duty is only to be confined to the period of six months because it was contended	 in view of the facts and the circumstances narrated hereinbefore	 that there was no suppression of any fact. It may be relevant in this connection to refer to Section 11 A of the Act	 which pro vides as follows: "When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded	 a Central Excise Officer may	 within six months from the rele vant date	 serve notice on the person charge able with the duty which has not been levied or paid or which has been short levied or short paid or to whom the refund has errone ously been made	 requiring him to show cause why he should not pay the amount speci fied in the notice: Provided that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud	 collusion or any wilful misstatement or suppression of facts	 or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty	 by such person or his agent	 the provisions of this sub section shall have effect	 as if for the words "Central Excise Officer"	 the words "Collector of Central Excise"	 and for the words "six months"	 the words "five years" were substituted. 878 Explanation: Where the service of the notice is stayed by an order of a Court	 the period of such stay shall be excluded in computing the aforesaid period of six months or five years	 as the case may be. " Therefore	 we have to find out whether there was any fraud	 collusion	 wilful misstatement or suppression of facts for the Department to be justified to claim duty beyond a period of six months. This is a question of fact. It was found by the Tribunal that it was not possible for the appellant to contend that the appellant had made a correct statement. The Tribunal noted that the appellant could hardly contend that it discharged the onus of making correct declaration if it had withheld the description which was commonly used in respect of the goods not only by it self	 but also by those from whom it bought or to whom it sold the products. The appellant itself was both buying and selling these nuts and as such there was no conceivable reason why these nuts were described as end fittings in the declaration to the Department. It may be noted that in the declaration it was so described. The Tribunal was of the view	 and it cannot be said not without justification that these goods should have been described as nuts because the appellant itself had treated these as nuts. Therefore	 from this conduct suppression is established. The fact that the Department visited the factory of the appellant and they should have been aware of the production of the goods in question	 was no reason for the appellant not to truly and properly to describe these goods. As a matter of fact	 not only did the appellant	 as found by the Tribunal	 not de scribed these goods properly but also gave a misleading description. In the aforesaid view of the matter	 we are of the opinion that the Tribunal was right in classifying the goods under Tariff Item 52 of the Central Excise Tariff and in upholding the demand of the duty for a period beyond six months as contemplated by Section 11 A of the Act. The Tribunal duly gave benefit of the exemption notification in respect of the goods which had been exported. This part of the order is not challenged and cannot be challenged. The Tribunal	 however	 reduced the penalty from Rs. 1 lac to Rs.50	000. Mr. Sorabji	 learned counsel for the appellant	 contended that this was not right. There should not have been any penalty imposed. We are	 however	 unable to accept that position. Having come to the conclusion that there was deliberate suppression of wrong statement	 it follows auto matically that the Tribunal was justified in upholding the imposition of penalty. The quantum of penalty	 however	 was a matter which the Tribunal was free to fix as they thought fit	 as the justice of the case demanded. 879 Nothing has been shown to us that the conclusion of the Tribunal was bad. In that view of the matter	 the order of the Tribunal is upheld. The appeal must	 therefore	 fail and is accordingly dismissed. N.V.K. Appeal dis missed.

Summary:
The appellant company applied for a requisite central excise licence for manufacture of goods falling under Tariff Item 68 and for the purpose of such goods L 4 licence was also furnished and also the requisite ground plans of the factory in which the various goods were manufactured. The excise authorities granted L 4 licence. The appellant claimed benefit of exemption of Notification No. 89/79 CE dated March 1	 1979. The classification list submitted by the appellant was approved by the Assistant Collector by his letter dated May 25	 1979. For the period April 1	 1979 to June 30	 1979 the appellant filed his RT 12 for assessment which was also finally assessed without any protest or objection. As the appellant claimed that his goods were wholly exempted by virtue of notification No. 89/79 CE dated March 1	 1979	 the appellant wrote to the Superintendent asking for dispensation from filing RT 12 every month. The Superintendent informed the appellant that it need not file RT 12	 but should inform the excise authorities monthly by means of a simple letter the total clearance effected in the month in question. Thereafter	 the appellant submitted classification list in 1980	 1981 and 1982 and claimed benefit of exemption under notification No. 105/80 CE dated June 19	 1980. The Assistant Collector approved the classification list. The Central Excise Officer attached to the preventive branch visited the factory in July 1982 and examined the products manufactured by the appellant. In January 1983	 a show cause notice was issued to the appellant asking it to show cause as why excise duty should not be demanded under Tariff Item 52 in respect of the piece of nuts manu 871 factured and removed by the appellant during the period April 1	 1981 to July 19	 1982 without payment of appropri ate excise duty thereon	 and also to show cause why penalty should not be imposed for failure to obtain the requisite L 4 licence under Tariff Item 52 and to show cause why the material seized on August 26	 1982 should not be confiscat ed. The appellant showed cause and drew the attention of the authorities to the fact that the goods in question were not nuts but end products or connectors for lubricating purposes and as such were integral parts of Diesel Engine Pipes failing under Tariff item 68. The Collector of Central Excise passed orders on July 16	 1984 holding that fittings were nuts classifiable under Tariff Item 52	 and that appropriate duty on the clearance effected by the appellant during the period April 1	 1981 to July 19	 1982 should be paid and the seized goods were liable to confiscation but in lieu thereof a redemption fine of Rs.4	000 could be paid. The Collector also imposed a penalty of Rs. 1 lakh. The appellant went up in appeal before the Tribunal	 which partly allowed the appeal and partly upheld the order of the Collector. With regard to classification of the different fittings was concerned	 it was held that the classification should have been as nuts under Tariff Item 52 of the Central Excise Tariff. It further held that the appellant was guilty of suppression and therefore rejected the submission of the appellant that the show cause notice was barred by time. It	 however	 reduced the amount of Penalty imposed by the Collector from Rs. 1 lakh to Rs.50	000. The appellant appealed to this Court by special leave. In the appeal to this Court	 on the question whether the goods manufactured by the appellant were end products or connectors for lubricating purposes and as such were inte gral parts of the Diesel Engine Pipes failing under Tariff Item 68 as claimed by the appellant or nuts classifiable under Tariff Item 52. Dismissing the appeal	 HELD: 1. The Tribunal was right in classifying the goods under Tariff Item 52 of the Central Excise Tariff and in upholding the demand of the duty for a period beyond six months as contemplated by section 11 A of the Act. The Tribunal duly gave benefit of the exemption notification in respect of the goods which had been exported. [878F] 872 2(a) The Tribunal was right in upholding the demand of duty for a period beyond six months as contemplated by section 11 A of the Act. [878F] 2(b) Whether there was any fraud	 collusion	 wilful mis statement	 or suppression of fact	 for the department to be justified to claim duty beyond a period of six months under the proviso to section 11 A of the Act is a question of fact. [878B] 2(c) The appellant. was both buying and selling these nuts and as such there was no conceivable reason why these nuts were described as end fittings in the declaration to the Department. In the declaration it was so described. [878C D] 2(d) The fact that the officers of the Department visit ed the factory of the appellant and they should have been aware of the production of the goods in question	 was no reason for the appellant not to truly and properly describe these goods. [878D E] 2(e) Not only did the appellant	 as found by the Tribu nal	 not described these goods properly	 but also gave a misleading description. [878E] 3. The Tribunal on appraisement of all the materials	 held that these were nuts manufactured by the appellant. Such finding cannot be said to be wrong or perverse. It was arrived at after giving opportunity to both the parties and considering all relevant materials. There is no cogent ground to sustain any challenge to the findings of the Tribunal. The Tribunal has considered all the relevant evidence	 and not ignored any relevant piece of evidence. It had applied the correct principle of law applicable to the determination of the question. It has also applied the test of commercial identity of the goods and examined the matter from the angle of the conduct of the appellant. These find ings of the Tribunal cannot be assailed in appeal under section 35L of the Act. [875E; 877B C] 4. The Tribunal having come to the conclusion that there was deliberate suppression or wrong statement	 it follows automatically that the Tribunal was justified in upholding the imposition of penalty. The quantum of penalty was a matter which the Tribunal was free to fix as it thought fit	 as the justice of the case demanded. Nothing has been shown that the conclusion was bad. [878G H; 879A] 873