Judgment:
1. The, facts of the case in brief are that the appellants are engaged in the manufacture of railway track material, namely, M.S. tie bars, cotters and dog spikes. Officers of Central Excise visited the factory and checked the records. The records revealed that during the period 1985-86, the appellants had cleared goods of aggregate value of Rs. 34,30,499.20. The Department alleged that the appellants had manufactured and clandestinely removed excisable goods valued at Rs. 14,03,499.20 involving Central Excise duty of Rs. 66,000/-. The ld.Additional Collector after hearing the contentions of the appellant confirmed the demand for duty as also imposed a personal penalty of Rs. 25,000/- on the appellant. Being aggrieved by this order the appellants have preferred the present appeal before us.
2. Shri K.K. Anand, ld. Advocate appearing for the appellant submits that the case is covered against them on merits in terms of Tribunal judgment in the case of Aruna Steel Rolling Mills v. Collector reported in 1989 (42) E.L.T. 622. He submits that he would like to argue the case on limitation. The ld. Counsel submits that during that period there was a tariff advice which was issued as a trade notice by the Bombay Central Excise Collectorate under their trade notice No. 210/81 classifying tie bars under Tariff Item 26AA(ia). He submits that after restructuring of Central Excise Tariff on 1-3-88, this item was brought under Tariff Item 25 of the erstwhile Central Excise Tariff. He submits that since the product, namely, tie bar manufactured by them was classifiable under Tariff Item 26AA(ia), it was exempted under Notification No. 208/83, dated 1-8-83. He submits that the bona fide belief of the appellant was that tie bars manufactured by them being classifiable under Tariff Item 26AA(ia) or Item 25 of the Central Excise Tariff was exempted and, therefore, the question of taking any licence or payment of any duty on the clearances of tie bars did not arise. Ld. Counsel in support of his contention also cited and relied on the decision of this Tribunal in the case of Ajit India Pot. Ltd. reported in 1985 (19) E.L.T. 541. The Counsel submits that since the appellants held the bond fide belief in accordance with the Tariff Advice of the Central Board of Excise and Customs issued as a trade notice by the Bombay, Central Excise Collectorate, longer period beyond six months cannot be invoked. In support of this contention he cited and relied upon the decision of the Apex Court in the case of Cosmic Dye Chemicals v. Central Excise, Bombay reported in 1995 (75) E.L.T.721 and also another judgment of the Apex Court in the case of reported in 1995 (78) E.L.T. 401. The ld. Counsel also submitted that Tribunal also took similar view while deciding the issue in the case of Poona Bottling Company v. CCE reported in 1991 (93) E.L.T. 715. Ld. Counsel submits that in view of this settled position in law the demand confirmed by the lower authority is hit by limitation and, therefore, prays that the appeal may be allowed.
3. Shri S. Nunthuk the ld. JDR appearing for the respondent Commissioner submits that the product tie bar during the material period was classifiable under Tariff Item 68 as held by this Tribunal in the case of Aruna Steel Rolling Mills and the appellant did not pay duty. Since the appellant did not pay duty, the lower authorities have rightly demanded duty. On the question of limitation the ld. JDR reiterates the findings of the ld. Additional Collector.
4. Heard, the submissions. Perused case law, we find that during the material period, there was a tariff advice issued by the Central Board of Excise and Customs which was circulated by the Central Excise Collectorate, Bombay under the Trade Notice No. 210/81, dated 1-10-81 which inter alia provided that tie bars were classifiable under item 26AA(ia). We also note that Central Excise Tariff was subsequently restructured and tie bars were put under Tariff Item 25. We note that products falling under this particular item and specifically tie bars were exempted under Notification No. 208/83. Thus, we are inclined to agree with the contention of the ld. Counsel for the appellant that assessee had the bona fide belief that tie bars were exempted during the material period. Following the ratio of the judgments cited and relied upon by the appellant, we hold that the demand is time barred.
In the result the appeal is allowed, consequential relief, if any, shall be advisable to the appellant in terms of the Apex Court ruling in the case of Mafatlal Industries reported in 1997 (89) E.L.T. 247.