ORDER
V.K. Agrawal, Member (T)
1. M/s. Industrial and Commercial Corporation have filed this appeal against the Order-in-Appeal dated 25.02.1993 in which Collector of Central Excise appeals has decided that Hot Mix Plant will be classifiable under Heading 84.74 of the Schedule to the Central Excise Tariff Act. Clearance of M/s. Adequate Steel and Allied Products would be clubbed with the clearances of the Appellants and that the goods had been cleared without payment of duty.
2. Shri Bipin Garg, Learned Advocate, submitted that the combined functioning of Hot Mix Plant is such which is not covered by any machinery falling under heading 84.74; that the Heat Treatment of the materials being the primary function of the Hot Mix Plants, it is classifiable under Heading 84.19; that as per Explanatory Notes of H.S.N. below heading 84.79, the Heating Apparatus for Bitumen is excluded from the purview of Heading 84.79; that the Hot Mix Plants manufactured by other assessee had been classified in Delhi Collectorate under Heading 84.19; that some of the classification lists of other assessees have been brought on record at pages 72-74 of the Paper Book. He, therefore, submitted that impugned product manufacturerd by them should also be classified under Heading 84.19 and relied upon the decision, in the case of Unival Surgical Traders v. Collector of Customs, 1988 (37) E.L.T. 58 (T) wherein the Tribunal allowed the benefit of Notification No. 208/81-Cus to the Appellants therein as the benefit of the said Notification was allowed by Madras and Bombay Customs Houses. He also relied upon the decision in the case of Everest International v. Collector of Customs Bombay -1997 (92) E.L.T. 559. The learned Advocate also relied upon Note 3 to Section XVI of the Tariff according to which composite machines consisting of two or more machines fitted together to form a whole and other machines adapted for the purpose of performing two or more complementary functions are to be classified as if consisting only of that component or as being that machines perform the principal function and submitted that the principal function of Hot Mix Plant is heat treatment of stones and bitumen and as such is classifiable under Heading 84.19.
3. He also relied upon the decision in the case of CCE v. Gakso Refrigeration Engineers – 1993 (63) E.L.T. 568 wherein it was held that when an operation of a machine is dependent on change of temparature it would be classifiable under Heading 84.19.
4. The learned Advocate further, submitted that the demand is time barred as the show cause notice was issued on 16-11-1989 for demanding the duty for the period 1987-88 and as such the entire demand is time barred. The learned Advocate alternatively submitted that in any case there cannot be any suppression of the facts w.e.f. 02.07.1988 when they had filed classification lists classifying Hot Mix Plants under heading 84.19 and a show cause notice dated 02.08.1988 was issued to classifying it under 84.74. Finally he submitted that penalty of Rs. 15,0007- is quite harsh which may be set aside or atleast reduced.
5. Countering the arguments, Shri A.K. Jain, Learned D.R., submitted that the Collector (Appeals) under his Order No. 1875/CE/CHD/91, dated 04.12.1991 had classified the Hot Mix Plant under Heading No. 84.74 in the case of the Appellants themselves and on appeal filed by the appellants/ the Tribunal vide final order No. 1424/99-B dated December 1999 had rejected their Appeal and as such the classification of Hot Mix Plant has been upheld by the Tribunal under Heading No. 84.74 in the case of Appellants themselves. He also submitted that the Tribunal has passed the final order after considering all the aspects; that the other classification lists of other assessees classifying the product under Heading 84.19 do not present the complete picture, as these classification lists might have been reviewed by the Collector; that further, they are bound to be differences in different collectorates in classifying the products. Finally he submitted that M/s. Adequate Steel and Alied Products did not have the sufficient machinery to manufacture the final products; that it is evident from the statements dated 02.08.1988 and 26.09.1988 of Shri Sanjeev Dhavan, Partner, and as such there was suppression of this fact and accordingly the extended period of limitation for demanding duty was available to the department in the present case. In reply the learned Advocates relied upon the decision of the Supreme Court in the case of Puspham Pharmaceutical Co. v. CCE, Bombay – 1995 (78) E.L.T. 401, and Lubri Chem Industries Ltd. v. CCE, Bombay -1994 (73) E.L.T. 257 (S.C.) wherein it was held that extended period of limitation is not invokable unless there is something more positive than mere inaction or failure on the part of the assessee or conscious or deliberate withholding of the information.
6. We have considered the submissions of both the sides. We find that the issue regarding classification of Hot Mix Plant has been settled by the Tribunal vide Final Order No. 1424/99-B, dated 28-12-1999 in the case of the Appellants themselves. It has been held that the impugned product is classifiable under heading 84.74 of the Central Excise Tariff and accordingly we order so in this appeal also. Regarding clubbing of the clearances of M/s. Adequate Steel and Alied Products with that of the Appellants we find that the Collector (Appeals) in the impugned order has held as under:
“The adjudicating authority has rightly observed that the goods claimed to have been manufactured by M/s. Adequate Steel and Alied Products were actually manufactured by M/s. Industrial and Commercial corporation as they were not having complete plant and machinery to manufacture concrete mixers. Further Sanjeev Dhawan, partner of M/s. Adequate Steel and Alied products, Amritsar in his statement has admitted that they were engaged in the manufacture of concrete mixers but did not have sufficient machinery to manufacture the concrete mixers and that they used to get the same manufactured from M/s. Industrial and Commercial Corporation Amritsar.”
7. We observe that the appellants have not been able to controvert the findings of the Collector (Appeals) in this regard.
8. We also find that the extended period of limitation was invokable as urged by the learned DR and also held by the Collector (Appeals) in the impugned Order that the appellants had not produced any evidence that they, had cleared the Hot Mix Plant on payment of duty. The learned DR has rightly submitted that there was suppression of fact regarding the goods manufactured by M/s. Adequate Steel and Alied Products and as such the longer period of limitation for demanding the duty is invokable in this matter. We, therefore, reject their appeal on this issue and hold that the duty demand is sustainable. However, taking into consideration all the facts and circumstances of the case we reduce the penalty to Rs. 10,000/-. The appeal is disposed of in the above terms.