Customs, Excise and Gold Tribunal - Mumbai
Amal Rasayan Ltd. vs Collector Of Central Excise on 19 April, 1993
Equivalent citations: 1993ECR362(TRI.-MUMBAI), 1993(67)ELT428(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. This appeal is directed against the Order-in-Original No. 13/Demand/91 dated 6-5-1991 passed by the Collector of Central Excise & Customs, Vadodara, confirming the demand for Rs. 38,402.42 on the ground that the appellants had short paid the duty to that extent and was recoverable vide Section 11A of the CESA, 1944.
2. While checking the records of the appellants firm, it was found that during the year 1982-83 and 1983-84 the appellants had opted for assessment on invoice value basis under Notification No. 120/75 dated 30-4-1975 but had paid duty only on the conversion charges for the goods received by them from different manufacturers, though they were supposed to pay duty on the assessable value on the product and that the benefit of Notification No. 120/75 was not available to them. A Show Cause Notice dated 1-11-1985 was therefore issued raising a demand for Rs. 38,402.45. The said notice was contested by the appellants on various counts including the one of time bar and a plea was raised that the extended period available under Section 11A of the Act was not attracted, in view of the fact that the department was fully aware of the appellants paying duty only on the conversion charges and not on the assessable value of the goods. It was pleaded that the RT 12 Returns in relation thereto alongwith the invoices were already periodically submitted to the department and were also assesssed and approved and that the invoices produced alongwith the said RT 12 Returns indicated that what they were charging was only for the conversion charges and that the duty was paid only in relation thereto. The authority below however disbelieved the same and held that the extended period was applicable. On merits, they held that they were not liable to any benefit under Notification No. 120/75 and therefore confirmed the demand.
3. Shri Willingdon Christian, the Ld. Adv. appearing for the appellants has submitted that he was not arguing the case on the applicability of the notification and was restricting his appeal only to the issue of time bar. He has submitted that the department was aware of their paying duty only on the conversion charges. Referring to the observation in the order of the Additional Collector, he has submitted that this aspect is even admitted by the said authority and even then, has held as an act of suppression and has raised the demand beyond a period of limitation of six months by invoking the extended period, which is required to be set a side.
4. Shri Mondal, the Ld. SDR, while supporting the order has pleaded that there are contravention of the statutory provisions and misinterpretation of the notification and intentional diversion of the attention of the authorities in assessing the RT 12 Returns and as such the extended period available under Section 11A of the Act stood attracted. He has also submitted that even otherwise, there is no contention raised by the appellants that RT 12 Returns for the period of November, 1983 were also filed and in that case even if the demand for the earlier period was held as time bar act of suppression can be attributed in relation to the payment of duty for the month of November 83 and that remains recoverable.
5. Considering the submissions made, when the appeal has not been pressed on merits, the liability of the appellants to pay duty which has been adjudicated as existing does not require to be considered in this appeal.
6. As regards the limitation, undisputedly the entire demand is beyond the period of six months as the Show Cause Notice has been issued on 1-11-1985 and the demand relates to the period 24-9-1983 to 5-11-1983. Even going by the observation of the adjudicating authority, the fact were made known to the authorities in their RT 12 Returns which were accompanied by the invoice showing charging only of conversion charges and the duty having been paid thereon. In that case, it is not possible to hold that non-payment of the duty on the assessable value of the goods was the fact concealed or suppressed from the Department. The submission of the Ld. SDR, that in any case RT 12 Return for November 1983 was not filed and as such an act of suppression ought to be held as proved to that extent, also does not appear convincing inasmuch as, for all the earlier periods this was the practice followed by the appellants with due declaration before the authority and mere not filing an RT 12 Return for the month of November before detection, would not tantamount of an act of suppression of the fact which was already known to the department much before the same. In that case, that argument does not appeal to me to hold that the demand restricted to a particular period be held as within the extendedperiodoflimitation.
7. With specific observation of the adjudicating authority that the invoices were submitted alongwith RT12Returns to the department, the reason ings adopted by him in invoking the extended period are not sustainable under law. The demand is beyond a period of six months and the extended period is not available and hence the same cannot be raised. The order raising the demand is therefore set aside. Consequential relief to follow.