Per Archana Wadhwa :

All the appeals are being disposed of by a common Order as they arise out of the same impugned Order of the Commissioner of Central Excise, Jamshedpur. Vide the impugned Order, the adjudicating authority has confirmed the demand of duty of Rs. 9,24,818.54 against the appellants, M/s. Gillooram Gaurishankar and has also imposed a personal penalty of Rs. 9.25 lakh upon the appellants. Apart from the above, penalties of Rs. 5.00 lakh, Rs. 10.00 lakh, Rs. 2.00 lakh and Rs. 2.00 lakh have been imposed upon Shri G.P. Dalmia, Director, Shri Sanjay Dalmia, Director, Shri Sunil Dalmia, Director and Shri K.K. Jha, Manager respectively, under the provisions of Rule 209A of the Central Excise Rules, 1944.

2. Briefly stated the facts of the case are as under :-

2.1. The appellants are engaged in the manufacture of Aluminium Conductors (A.A.C.) and Aluminium Conductor Steel Reinforced (A.C.S.R.) and single wires in their factory. The appellants purchased the Aluminium Wire Rods from different manufacturers for the purposes of manufacture of their final product. They also imported Aluminium Ingots under D.E.E.C. Scheme, against the exports made by them. A part of the Aluminium Ingots thus received by the appellants was sent to other job workers for conversion into wire rods under the provisions of Notification No. 214/86 and/or Rule 57F (2) procedure with the prior permission of their jurisdictional Central Excise Authorities. The Wire Rods were brought back in their factory and were used in the manufacture of Aluminium Wires.

2.2. The appellants also converted the Aluminium Ingots into Wire Rods which were subsequently drawn by them into wires. Aluminium Wires, which are the final products of the appellant firm were cleared without payment of duty under the provisions of Notification No. 180/88-CE dated 13.5.88. The present duty has been confirmed against the appellants on the Wire Rods which the Department alleges were got manufactured out of the Aluminium Ingots and were used captively by the appellants in the manufacture of Aluminium Wires without payment of duty. As per the Revenue, inasmuch as the final product, Aluminium Wire was exempted, the appellants were required to pay duty on the Aluminium Wire Rod which has emerged at the intermediate stage of manufacture of Aluminium Wires. Accordingly, the demand has been confirmed against the appellants by invoking the longer period of limitation against them, i.e. for the period - 1990 to February, 1994.

3. Shri B.N. Chattopadhyay, learned Consultant for the appellants submits that in the process of converting Aluminium Ingots, the same were melted and cast into small pieces, which were further rolled into Rods of 15'/25' long. The rods so produced were then drawn into Wires. It is the contention of the learned Consultant that these small pieces of Wire Rods are not marketable inasmuch as the length of the Wire Rods, which emerged in their Unit in a continuous process, is to the tune of 15' to 25'. Such Wire Rods are not commercially viable for utilisation in the manufacture of Aluminium Wires inasmuch as if they are joined frequently at the time of drawing of Wire on account of their short length, there is a possibility of breakage of the Wires. It has been further pointed out that to be compatible for drawing, Wire Rods are required to be of substantial lengths, generally more than 1.5 M.T. to 2.5 M.T. in case of Aluminium. As such, it has been strongly contended that such Wire Rods are not marketable and hence not excisable in spite of their having been mentioned in the Central Excise Tariff. In support of his above submission, the appellants referred to two Certificates from M/s. BALCO and M/s. NALCO which are to the effect that it is not commercially possible to draw Wire out of the Aluminium Wire Rods of shorter length. Shri Chattopadhyay, learned Consultant further submits that the appellants have taken a definite stand before the adjudicating authority, that th