ORDER
Gowri Shankar, Member (T)
1. Notice was issued to the assessee for removing a consignment of copper wire for redrawing into thinner wire to M/s. Amar Wire without obtaining permission under Rule 57F and therefore demanding duty on the goods. It appears that the assessee did not reply. At the hearing before the Assistant Collector, the assessee contended that the goods were sent not to Amar Wire Industries (Amar for short) but to Ajit Wire Industries (Ajit for short) and that the permission was granted by the department by its letter dated 15-8-1987 for sending the goods to Ajit. The Assistant Collector noted that the assessee had in December, 1990, sought permission from the department for removing copper wire to Ajit for redrawing and after replies to some queries were given, such permission was granted on 4th September, 1991. He therefore found that the goods were removed before the permission was granted and confirmed the demand for duty. He also imposed penalty of Rs. 1000/-
2. The assessee appealed against this order. It was contended that the goods were sent to Ajit and not to Amar and that it already had permission to send the goods to this firm for drawing. The appeal therefore contended that the permission for redrawing the wire, which it was stated was what was sent, was already available. It was also contended that the permission for sending the drawing was subsequently granted after nine months from the application sent by the assessee.
3. The Collector (Appeals) was persuaded by the later ground. He said that since the department had granted permission on October, 1991 for the purpose, it was not proper to demand the duty or impose penalty. He set aside the Assistant Collector’s order. Hence the appeal by the department.
4. The ground in- the appeal is that the permission is prospective and would not be valid to cover the goods removed in anticipation of this permission. The departmental representative reiterates this contention.
5. I am unable to appreciate the contention of the Advocate for the respondent that permission granted subsequently cover this removal. The permission under Rule 57F(2) would be effective from the date on which it is granted and would not operate retrospectively. Generally any permission under law would rise prospectively and not retrospectively. Unless there was specific provision to this effect in the law, or the terms of the permission, it is not possible to say that the permission would cover removal that were made before the permission was actually granted. Therefore any removal of goods in anticipation prior to the grant of such permission would not be covered by such permission.
6. It is also contended by the Advocate of the respondent that the goods removed under the permission granted in 1987. He produced one letter F. No. V-Ch/Notn. 214/86/KI/365/3789 permitting the assessee under notification 214/86 to remove to Ajit Enterprises and Ajit Wire Industries, copper wire rods for hot rolling or conversion of rods to wire. He contends that this constitutes permission for removal of goods without payment of duty.
7. The goods were described in the notice to show cause, and also in the appeal filed by the appellant as copper wire. The permission is for removal of copper wire rods. It is contended that the goods were wrongly described by the assessee in the appeal to the Collector (Appeals) as wire but actually are wire rods. The challan dated 9-4-1991 for the goods referred to consignment of 9858.00 kgs. of ground copper wire rod is produced in support. However, the heading mentioned is for 7108.11 which is for copper wire or refined copper exceeding cross sectional dimension of 6 mm. It is therefore not possible to conclude that what was removed was copper rod and not copper wire.
8. Even if the goods were copper wire rods, it would not really make a difference. The permission relied upon was granted under Notification 214/86. This exempts goods specified in the table thereto manufacture in a factory as a job worker and used in or in relation to manufacture of final product specified from the duty. One of the condition in para 2 of the notification is that the supplier of raw material have sent finished goods (which is sent to the job worker) undertaking that the goods shall be used in or in relation to the manufacture of supplier produced and undertake to discharge duty liability on the finished products. This notification would therefore apply to in the circumstances, which we are concerned to the wire that would have made by drawing by Ajit Wire Industries. The wire rods (or wire) which were removed were not manufacture by the respondent as job worker. The notification therefore cannot be invoked to claim exemption from payable on the goods without payment of such duty.
9. The result is that the duty has been rightly demanded in the goods in question. Having regard to the fact that the goods were removed when the respondent’s application for permission was pending for quite a long period, I do not think that penalty was justified. The appeal is allowed and Collector (Appeals) order is set aside. Accordingly, the Asst. Collector order demanding the duty on the goods is restored.