U.P. Twiga Fibreglass Ltd. Vs. Collector of Central Excise - Court Judgment

Excerpt:
1. shri s.v. arya, advocate appearing on behalf of the appellants m/s.u.p. twiga fibreglass ltd. submitted that the appellants had prima facie a strong case on merits inasmuch as the matter relates to the duty liability on glass waste which is not specifically mentioned in the central excise tariff. the revenue had classified the glass waste also along with the glass fibre and articles of glass under heading no.7014 of the ceta, 1985. he referred to the order-in-appeal and submitted that everything which is waste even if may be marketable may not be excisable, and referred to the supreme court decision in the case of indian aluminium industries ltd. reported in 1995 (77) e.l.t.268 (s.c.). he also referred to the supreme court decision in the case of balaji enterprises v. c.c.e., madras reported in 1997 (92) e.l.t. 3 (s.c.) relating to aluminium scrap. he also assailed the order-in-appeal on the ground of limitation. on behalf of the respondent revenue, shri r.s. sangia was present.2. we have carefully considered the matter. the issue involved is the excisability and dutiability of the goods which the revenue had taken as "glass fibre/wool waste under sub-heading 7014.00" as discussed in the order-in-original no. 33/97, dated 30-1-1997. the adjudicating authority in that order had referred to the tribunal's decision in the case of c.c.e. v. dunlop india limited - 1988 (36) e.l.t. 329.reference has also been made t- a number of other decisions of the high courts, supreme court and the tribunal. the ld. advocate had also referred to a number of decisions in support of his argument that the glass waste was not excisable and dutiable. in particular, he has referred to the supreme court decision in the case of balaji enterprises v. c.c.e., madras - 1997 (92) e.l.t. 3 (s.c.) where the supreme court had observed that the aluminium scrap generated during the manufacture of utensils and containers out of aluminium circles were not treatable as 'aluminium in crude form'. he particularly referred to para 13 of that decision.3. we find that in the various decision, different commodities had been discussed and in the case of glass fibre/wool waste, the matter had to be examined in detail with regard to the process involved and the marketability.4. the appellants have submitted that everything that is sold may not be considered as marketable. we are unable to appreciate this distinction between the sale and the marketability. we find that the goods have been sold of course at different prices. the appellants have shown us some invoices relating to continuous fibre wastes glass wool wastes which had been sold to different customers. it has been explained that these goods may be having some use which is not known to the appellants.5. we find that the show cause notice issued on 21-11-1994 relates to the period may, 1994 to september, 1994 and the show cause notice issued on 24-9-1996 relates to the period march, 1996 to august, 1996.both the show cause notices are within the period of normal limitation.6. as the matter relates to the excisability and durability and as both the revenue and the appellants have relied upon the various decisions, we consider that the matter had to be gone into in detail which is possible only at the stage of the final hearing. the appellants have not pleaded any financial hardship.7. taking into account the issue involved and the arguments advanced by both the sides, we direct the appellants to deposit a sum of rs. 1.0 lac (rupees one lac only) within a period of eight weeks from today. on depositing of the above said amount, the pre-deposit of the rest of the duty amount will be waived and the recovery stayed till the disposal of the appeals.to come up for reporting compliance and further orders on 5th february, 1998.

Judgment:
1. Shri S.V. Arya, Advocate appearing on behalf of the appellants M/s.

U.P. Twiga Fibreglass Ltd. submitted that the appellants had prima facie a strong case on merits inasmuch as the matter relates to the duty liability on glass waste which is not specifically mentioned in the Central Excise Tariff. The Revenue had classified the glass waste also along with the glass fibre and articles of glass under Heading No.7014 of the CETA, 1985. He referred to the order-in-appeal and submitted that everything which is waste even if may be marketable may not be excisable, and referred to the Supreme Court decision in the case of Indian Aluminium Industries Ltd. reported in 1995 (77) E.L.T.268 (S.C.). He also referred to the Supreme Court decision in the case of Balaji Enterprises v. C.C.E., Madras reported in 1997 (92) E.L.T. 3 (S.C.) relating to aluminium scrap. He also assailed the order-in-appeal on the ground of limitation. On behalf of the respondent Revenue, Shri R.S. Sangia was present.

2. We have carefully considered the matter. The issue involved is the excisability and dutiability of the goods which the Revenue had taken as "Glass fibre/wool waste under sub-heading 7014.00" as discussed in the Order-in-Original No. 33/97, dated 30-1-1997. The Adjudicating Authority in that order had referred to the Tribunal's decision in the case of C.C.E. v. Dunlop India Limited - 1988 (36) E.L.T. 329.

Reference has also been made t- a number of other decisions of the High Courts, Supreme Court and the Tribunal. The ld. Advocate had also referred to a number of decisions in support of his argument that the glass waste was not excisable and dutiable. In particular, he has referred to the Supreme Court decision in the case of Balaji Enterprises v. C.C.E., Madras - 1997 (92) E.L.T. 3 (S.C.) where the Supreme Court had observed that the aluminium scrap generated during the manufacture of utensils and containers out of aluminium circles were not treatable as 'aluminium in crude form'. He particularly referred to para 13 of that decision.

3. We find that in the various decision, different commodities had been discussed and in the case of glass fibre/wool waste, the matter had to be examined in detail with regard to the process involved and the marketability.

4. The appellants have submitted that everything that is sold may not be considered as marketable. We are unable to appreciate this distinction between the sale and the marketability. We find that the goods have been sold of course at different prices. The appellants have shown us some invoices relating to continuous fibre wastes glass wool wastes which had been sold to different customers. It has been explained that these goods may be having some use which is not known to the appellants.

5. We find that the show cause notice issued on 21-11-1994 relates to the period May, 1994 to September, 1994 and the show cause notice issued on 24-9-1996 relates to the period March, 1996 to August, 1996.

Both the show cause notices are within the period of normal limitation.

6. As the matter relates to the excisability and durability and as both the Revenue and the appellants have relied upon the various decisions, we consider that the matter had to be gone into in detail which is possible only at the stage of the final hearing. The appellants have not pleaded any financial hardship.

7. Taking into account the issue involved and the arguments advanced by both the sides, we direct the appellants to deposit a sum of Rs. 1.0 lac (Rupees one lac only) within a period of eight weeks from today. On depositing of the above said amount, the pre-deposit of the rest of the duty amount will be waived and the recovery stayed till the disposal of the appeals.

To come up for reporting compliance and further orders on 5th February, 1998.