Gammon India Ltd. Vs. Commissioner of C. Ex. - Court Judgment

Excerpt:

.....impugned in this appeal, the commissioner (appeals) has confirmed the classification determined by the deputy commissioner of the drive shafts manufactured by the appellant, which transmit power to the industrial fans manufactured by it, under heading 84.83 of the tariff as transmission shafts, and his finding that the show cause notice dated 28-9-1992, demanding duty for the period september, 1987 to february, 1992 rightly invoked the extended period contained in the proviso under sub-section (1) of section 11a of the act.2. mr. prakash shah, counsel for the appellant, does not press the ground in the appeal relating to classification of the goods and agrees that they should rightly be classifiable as transmission shafts. he, however, disputes the applicability of the extended period. in the classification list submitted by the appellant to the assistant collector in 1988, the goods were specifically described as "drive shafts for industrial fans", although classification was claimed under heading 84.14. the department would have been aware, from this description that the goods were shafts. he also points out that the tribunal, in its decision in moosa haji patrawala v. cce -.....

Judgment:

1. By his order impugned in this appeal, the Commissioner (Appeals) has confirmed the classification determined by the Deputy Commissioner of the drive shafts manufactured by the appellant, which transmit power to the industrial fans manufactured by it, under heading 84.83 of the tariff as transmission shafts, and his finding that the show cause notice dated 28-9-1992, demanding duty for the period September, 1987 to February, 1992 rightly invoked the extended period contained in the proviso under Sub-section (1) of Section 11A of the Act.

2. Mr. Prakash Shah, counsel for the appellant, does not press the ground in the appeal relating to classification of the goods and agrees that they should rightly be classifiable as transmission shafts. He, however, disputes the applicability of the extended period. In the classification list submitted by the appellant to the Assistant Collector in 1988, the goods were specifically described as "drive shafts for industrial fans", although classification was claimed under heading 84.14. The department would have been aware, from this description that the goods were shafts. He also points out that the Tribunal, in its decision in Moosa Haji Patrawala v. CCE - 1997 (96) E.L.T. 55 approved under heading 8414.99 the classification of drive shafts for fans and therefore the manufacturer could legitimately believe that the goods were classifiable under that heading.

3. When this appeal first came up for hearing, we had expressed our doubts about the correctness of the decision in Moosa Haji Patrawala v.CCE. The question of referring that decision for reconsideration does not now arise in the light of the concession of the counsel regarding classification. However, the fact that a bench of the Tribunal has held the shafts to be classifiable, not as transmission shafts under heading 84.83 but as parts of fans, lends credence to the claim that the manufacturer could legitimately believe that these goods were parts of fans. The fact that the appellant had specifically described this as shafts for industrial fans independently supports its claim on limitation. From this description, the departmental officers would have known that the shafts were intended to transmit power to the fans, and hence were transmission shafts. These facts impel us to conclude that the assessee had no intention to evade duty. There was hence no scope for invoking the extended period. The demand is barred by limitation.