P.C. Jain, Member (T)

1. Short question involved in this appeal is classification of the product described as "Bogie Centre Pivot Bold (Pin)" (hereinafter referred to as Pivot Bolt). The department contends that this is classifiable under the Tariff Item 52 as it then stood during the relevant period whereas the appellant contends that it is nothing but a component part of railway wagon and therefore, fell under Tariff Item 68 of the GET. It was noticed by the department that the appellant was manufacturing the goods since long but they had not brought to the notice of the department and had been using these Pivot bolts for captive consumption in the manufacture of railway wagons which were ultimately cleared on payment of duty. Therefore, a notice dated 14-10-1982 for demanding duty of Rs. 24933.12p for the period of October 1974 to 3-6-1982 was issued to the appellant company under Rule 9(2) of the Central Excise Rules for contravention, inter alia, of Rule 9(1). On adjudication, it was held by the Addl. Collector of Customs and Central Excise, Jaipur that the said product fell under Tariff Item 52. He also confirmed a demand for a period of 5 years prior to the date of issue of show cause notice. This demand has been later on quantified at Rs. 16404.12p. A penalty of Rs. 1000/- has also been imposed on the appellant under Rule 173-Q of the Central Excise Rules, 1944. tt is this order which is in appeal now before the Tribunal.

2. Learned advocate appearing for the appellant company, elaborating on the argument that it is a component part of the railway wagon states that a wagon has three main parts (i) the body which is used for carrying the goods (ii) the under frame or chassis on which the body of the wagon is built up (iii) the bogie or the wheel assembly which is fitted beneath the underframe or the chassis. He has also enclosed a copy of a drawing of the entire wagon and an enlarged drawing of the bogie or the wheel assembly. He states that the wheel assembly or the bogie is firmly fixed to the underframe or chassis of the wagon by two fasteners known as bogie centre pivot bottom and bogie centre pivot top. The function, however, of the bogie centre pivot pin or pivot bolt though no doubt, helping in holding the underframe and the bogie assembly together but does not fasten them together. Fastening implies rigidly holding the two bodies together and does not allow for any movement between the two bodies. In the instant case, however, the learned advocate submits, that the pivot bolt allows for swiveling effect of the wagon. This is done by the pivot bolt due to the fact that there is distance of some millimeters between the wall of the pivot bolt and the wall of the centre pivot top and the bogie frame. This relative movement between the walls of the underframe or chassis and the bogie or the wheel assembly is considered necessary for the smooth movement of the wagons over a curved railway track. If this movement is not allowed there may be possibilities of the damage to the wagons themselves or of accidents. He, therefore, submits that the pivot bolt's primary function is as component part of the wagon rather than as a mere fastener. Therefore, the product under consideration cannot be classified under Tariff Item 52. He relies for this proposition on Karnataka High Court's judgment in the case of Ideal Jawa [MANU/KA/0099/1986 : 1986 (24) ELT 226 (Kar.)]. He also relies upon two decisions of the Tribunal in the cases of New Mangalore Engg. Co. Pvt. Ltd. [Order No. 746/1987-D dated 12-8-1987] and (ii) Ashok Leyland Ltd. [Order No. 848/87-D dated 19-10-1987].

His next plea is that the show cause notice cannot invoke a time limit of five years and duty prior to 14-4-1982 i.e. prior to six months from the date of show cause notice would be time barred.

3. Learned JDR appearing for the department, on the other hand, contends that the goods are described as bolt. Its appearance is that of a bolt. Size is of no criterion in