Om Prakash, J. - (1.) The only question for consideration in this writ petition filed by M/s. Hind Cement Products Limited (hereinafter to be referred as the petitioner unit, which is owned by the Hind Ceramics Limited hereinafter to be referred to as the company) is whether the Customs Excise and Gold (Control) Tribunal was right in sustaining the penalty to the extent of Rs. 65817.63 by the order dated 30th August 1983, =[1983 ELT 1860 (Cegat)] (Annexure 28 to the petition).
(2.) The petitioner unit is engaged in the business of manufacture of absestos cement pipes and the company carries on the business of manufacture of P.C.C. poles (Prestress Cement Concrete poles). The case of the petitioner unit is that it continued to pay the excise duty until the enforcement of the Notification No. 71/78, dated 1st March 1978. (Annexure 2 to the petition). In para 7 of the petition, it is averred that the petitioner unit was exempted from payment of Central Excise Duty w.e.f. 1.4.1978 in terms of notification (Annexure 2), as the excisable goods upto an aggregate value not exceeding Rs. 5 lakhs were exempted thereunder. The petitioner, therefore, submitted on 24th March 1978, a revised classification list (Annexure 3 to the petition). The petitioner was allowed exemption, as the aggregate value of the excisable goods did not exceed Rs. 5 lakhs. Declarations (Annexure 14 & 5 to the petition) were also submitted by the petitioner on 17.4.1979 and on 14.4.1980 indicating that the petitioner unit is owned by the company. Later, a Notification No. 141/79, dated 30th March 1979, effective from 1st April 1979, (Annexure 8 to the petition) came into force, whereby clause (III), was inserted in condition (a) after Clause (II) in the notification (Annexure 2). Condition (a) circumscribes the exemption, allowed by the notification (Annexure 2). The effect of the newly inserted Clause (III) in condition (a) was that the manufacturers manufacturing more than one excisable goods, the aggregate value of which exceed Rs. 20 lakhs, were deprived of the exemption. Invoking the newly inserted clause in the notification (Annexure 2), the department took the view that the petitioner was liable to pay excise duty on the goods, removed during the period from 30th March 1979 to 26th March 1981, because the aggregate value of the excisable goods manufactured by the petitioner and the company exceeded the limit of Rs. 20 lacs. A show cause notice dated 2nd May 1981, (Annexure 22 to the petition) was given to the petitioner. Adverting to newly inserted Clause (III) in condition (a) of the notification (Annexure 2), Assistant Collector Central Excise Rampur stated in the show cause notice that"...it becomes clear that the aggregate value of clearances of all excisable goods by Hind Cement Products Limited Rampur or petition, viz. M/s. Hind Ceramics Limited Rampur for home consumption from one or more factories during the preceding financial year i.e. 1978-79 have exceeded Rs. 20 lacs----" The aggregate value of the excisable goods manufactured by the petitioner and by the company having exceeded Rs. 20 lacs, the Collector Central Excise levied excise duty on the petitioner amounting to Rs. 65817.63P under Rule 9(2) of the Central Excise Rules, 1944 (for short the Rules 1944) and a penalty of Rs. 5 lacs by the order (Annexure 24 to the petition). This order was appealed against by the petitioner and then the Tribunal by the order (Annexure 28 to the petitioner) upheld the imposition of excise duty and reduced the penalty from Rs. 5 lacs equal to the amount of excise duty.
(3.) The petitioner has challenged the Tribunal's order imposing the excise duty as well as the penalty.;