V. Rajamanickam, Member (T)

1. This is an appeal arising out of the Order-in-Appeal No. 37-B dated 17-1-1980, passed by the Central Board of Excise Customs, New Delhi, against which a revision petition was filed and transferred to this. Tribunal.

2. The appellants were manufacturing 'Copper and Bronze Ingots' from copper and bronze boring scraps supplied by the South Central Railways. The goods after manufacture were supplied back to the Railways. As per specification of their customers, they were adding lead, tin, white metal, gun metal etc. etc. in the scrap supplied by the Railways at the time of manufacture of the ingots. This fact was not reported in the classification list filed before the Assistant Collector. It has been held that since this extra material was added, the benefit of the Notification No. 119/66 dated 16-7-1966 would not be available to them and they would be liable to pay duty. The Central Board of Excise Customs has upheld the findings of the Collector of Central Excise, Hyderabad, that the Notification No. 119/66 was not applicable to their products, and since the Classification List was not approved, the clearances without payment of duty were to be charged to duty. The penalty of Rs. 10 lakhs was reduced to Rs. 5 lakhs. The appeal is against this order.

3. Shri N.K. Dev, Ld. Consultant, traced the facts of the case to the classification list dated 2-11-1974, item 2 was approved until further orders and the Notification No. 119/66 was applicable to their products. However, the Show Cause Notice dated 19-10-1976 and 18-1-1977 was issued to the appellant for removing Bronze Ingots and Copper Ingots without payment of duty and without approval of classification list. But, however, Shri N. K. Dev pointed out that the classification list was approved and the endorsement made as "approved until further orders" is a routine endorsement made on all the classification lists and the fact that RT-12 Returns were assessed under nil rates of duty and maintenance of Form IV Register, indicating the raw materials received, were clear indications, that the department was fully aware of the products manufactured and the charge of suppression and clandestine removal cannot be levelled against them and the demands are time barred. The notification was rightly available to him, if he was eligible and cited the case law: 1989 (13) ETR 20 - C.C.E., Baroda v. Atlas Radio and Electronics (P) Ltd. -MANU/CE/0300/1988 : 1989 (39) ELT 123 (Tri.).

4. Shri M.S. Arora, Ld. J.D.R. referred to the Notification No. 119/66 dated 16-7-1966. In respect of the S. No. (ii) of the Notification, the Classification List was filed on 2-11-1974, under S. No. 2 of the Classification List in relation to Scrap obtained from copper, the proof of payment of duty was not submitted and hence the appellants were not liable for the exemption. That the Rule 10A will be applicable at the relevant time and even if not cited the residuary powers for recovery of sums due to Govt. will apply and Rule 10 is not applicable. The following case laws were cited :-

(i) 1978 (2) ELT (J- 416) - In the Supreme Court of India, Assistant Collector of ' Central Excise v. National Tobacco Co. of India Ltd.;

(ii) MANU/SC/0283/1968 : 1978 (2) ELT 355 - In the Supreme Court of India - J.K. Steel Ltd. v. U.O.I, and Ors. (Para 45).

That if the Show Cause Notice raised the demand under Rule 9(2), the competent officer who made the demand was competent to make the demands both under Rule 9(2) as well as under Rule 10.

4A. The Ld. Consultant has cited the following judgments in his favour for excluding Rule 10A:

(i) 1979(4) ELT (J 307) -Jay Engineering Works Ltd. v. Govt. of India (paras 13 15) - Where there is final assessment, Rule 10 will apply.

(ii) 1978 (2) ELT (J 399) (SC) - N. B. Sanjana, Assistant Collector of Central Excise, Bombay and Ors. v. The Elphinstone Spinning and Weaving Mills Co. Ltd.

On the applicability of Rule 9(2), to attract Sub-rule 2 of Rule 9, goods shou