S.D. Jha, Member (J)

1. The questions arising for decision in this Appeal by M/s. Hyderabad Race Club, Hyderabad, against order dated 31-12-81 passed by Central Board of Excise and Customs are whether the Totaliser system installed by the appellants in their premises at Hyderabad is liable to central excise duty, if so, its quantum and the period for which it should be made and the legality of show cause notice dated 3-1-1978 which has led to the present demand.

It might be stated that Item No. 9 of Notification No. 51/70-C.E. dated 1-3-1970, as amended by subsequent notifications, specifies Totalisers as one of the office machines and apparatus liable to duty under Tariff Item 33-D of Central Excise Tariff. During arguments it was felt that the Item specifies Totalisers and not Totalizators or Totalizator system and that three might be different. On this doubt being expressed by the Bench, Shri M. Chandrasekharan, learned Counsel for the appellants, stated that this was not one of the grounds he urged against the impugned order. We, therefore, do not examine this question.

3. The present demand is the outcome of visit dated 21-7-77 by the Superintendent (Prev.) to the appellants' premises. The Superintendent saw the Control Panel Boards installed in the premises, namely, Quinella control Panel Boards, Forest control panel boards, Win and place control panel board and Win and place control panel Board (for Rs. 50 tickets). The Panchnama made on the same date by the Supdt. Central Excise contains a description of these boards and inter alia states that in the opinion of the Supdt. the boards and the punching machines are different parts of Totalizator (Totaliser) and they are dutiable under Central Excise Tariff and that they are said to have been assembled by the appellants in the years 1974 and 1975. The Panchnama further recites that the Supdt. seized the control panel boards with relays etc. and recording panel boards with counters etc. It is significant that the Panchnama does not refer to ticket issuing machines. This mention becomes necessary because earlier on 19-7-76 the Assistant Collector had visited the appellants' premises and seen ticket issuing machines installed therein which had been cleared by the manufacturer without payment of central excise duty. The central excise duty on these machines, it is claimed by the appellants and not disputed by the other party, had been paid by the appellants in 1976 itself on demand to that effect being raised by the Assistant Collector. After usual investigation, notice dated 3-1-1978 was served on the appellants calling upon them to show cause why penalties be not imposed for breach of various rules of Central Excise Rules, 1944 (hereinafter called Rules), the seized goods be not confiscated and central excise duty be not demanded under Rule 9(2) for goods held to have been removed for home consumption without payment of duty. The appellants filed reply dated 22-1-78 reiterating their earlier contention in another letter dated 27-7-77 that panel boards would not fall under definition of Totalizator, that panel boards had been fabricated by them at their own premises. Earlier, on 19-7-76 the Assistant Collector of Central Excise, Hyderabad, Mr. Prasad and the Superintendent Mr. M.A. Basa had visited the appellants' premises and seen the ticket issuing machines and the panel boards and had demanded duty on ticket issuing machines which had been paid. At that time there was no mention of panel boards being subject to central excise duty. The same Supdt. Mr. Basa had again visited the premises on 18-7-77, called for certain information and made seizures. It was further urged that during earlier visit on 19-7-76 the demand of duty under Items 8 and 9 on ticket issuing machines and Totalisers was made and duty collected. The same having been done earlier, the panel boards could not be termed as totaliser. It was submitted that some items of expenditure deserve exclusion from asse