Customs, Excise and Gold Tribunal - Tamil Nadu
Sundaravel Match Industries (P) Ltd. vs Collector Of C. Ex. on 15 July, 1992
Equivalent citations: 1993(63)ELT364(TRI-CHENNAI)
ORDER V.P. Gulati, Member (T)
1. This Reference Application arises out of the Tribunal's order No. 989/1990 dated 20-12-1990. The Tribunal in the order upheld the order of the learned lower authority that the appellants had suppressed the fact of production of the goods in question as the appellants did not bring to the notice of the authorities the fact of production of goods of the other units.
2. The following questions of law have been raised for reference to the Hon'ble High Court :-
(1) Whether the applicant is justified in his belief that the terms of Excisable goods under Tariff Item 68 referred to in the Notification No. 77/83 and 77/85 relate to Splints and Veneers and not matches also.
(2) Whether in view of the accounts maintained by the applicant for consumption of raw materials which would include the consumption of Splints and Veneers and also the submission of periodical Returns to the departments of Governments including Returns under Rule 55 to the Excise Authorities it could be said whether there is any suppression of material, warranting the invoking of Section 11(A) of the Central Excise Act.
(3) Whether on the face of the Registration Certificate of the Small Scale Industries Unit Sundaravel Match Industries Private Ltd., which describes the manufacturing/processing activities as including hand-made safety matches only and splint and veneer at No. 181-A, Sachiapuram Road, Thiruthangal, it could be said that the present is a case of suppression of material facts as contained in Section 11(A) of the Act.
(4) Whether in view of the captive consumption allowed, the demand for 1984-85 in order.
3. The learned Advocate for the applicants referred to the order-in-original and also of the Tribunal's order and pleaded that no suppression of fact could be attributed to the applicants as the applicants' operations were within the knowledge of the authorities. He further pleaded that initially the show cause notice was issued by the Superintendent but later on due to amendment to Section 11A the cause was asked to be shown to the Collector and the addendum asking the cause to be shown to the Collector should have been issued by the Collector as the amended provisions of Section 11A requires the show cause notice to be issued by the Collector in case of suppression would apply.
4. Heard the learned DR for the Department.
5. We observe that so far as question No. 1 raised in the reference application is concerned the Tribunal has given detailed reasons as to why the applicants' explanation that the declaration filed in terms of Notifications 77/83 and 77/85 would not admit of any ambiguity in regard to the nature of the declaration and that the applicants had not filed the correct declaration. Nothing has been pointed out before us that the wording of the notification would lead to any doubt that applicants were not required to file a declaration in regard to all the excisable goods manufactured by them. Admittedly, the applicants had not filed any declaration or intimated the authorities in regard to the manufacture of Splints & Veneers which are excisable and which were, therefore, required to be included in the declaration regarding the excisable goods manufactured by the applicants and the value of the same was also required to be intimated. In view of the above, we hold that no question of law arises for reference in this context.
6. The second question mentioned in the reference application is on the ground that the applicants had been maintaining necessary records in regard to the manufacture of Splints and Veneers and, therefore, in that context no suppression could be attributed. The Tribunal has taken note of this plea of the applicants and has held that what is relevant is whether the applicants brought to the notice of the authorities the other units where excisable goods were being manufactured as required under the rules and that the authorities are not expected to dream up the applicants' manufacturing activities in other units and have held that in the facts of this case the ratio of the Hon'ble Supreme Court decisions in the cases of Padmini Products, 1989 (43) E.L.T. 195 (SC) and C.C.E. v. Chemphar Drugs & Liniments, 1989 (40) E.L.T. 276 (SC) would not apply. Inasmuch as the findings have been given in the context of the settled law on appreciation of facts in regard to suppression, in our view, the question of law as formulated about would not arise for reference.
7. Question No. 3 referred to above does not clearly set out how the question of law can be formulated in this context. However, what appears is that the applicants seem to be urging the issue in the context of declaration filed which has been already dealt with in the paragraphs above. Therefore, we hold that no question of law would arise in this context.
8. Question No. 4 as referred to above does not arise out of the order of the Tribunal inasmuch as no plea in regard to the demand for the period 1984-85 in the context of captive consumption was raised. The learned Advocate at the time of hearing before us has urged that the addendum should have been issued by the Collector and the amended provisions of Section 11A would apply. We observe the Tribunal in the order has clearly held that the addendum was issued after the amendment to Section 11A and the show cause notice had already been issued by the Superintendent before the amendment and the addendum cannot be taken to be a fresh notice and has upheld the legality of the show cause notice issued for the reason that the demand had already been issued for the relevant period by the competent authority at that time and the case has been adjudicated by the competent authority at the relevant time. The addendum, as seen from the order of the Tribunal, merely indicated the quantum of duty payable and cannot be considered as a fresh notice as it was in continuation of the earlier notice as all the ingredients for the demand have already been set out in the show cause notice issued before the amendment to Section 11A. The show cause notice has, therefore, been issued by the competent authority earlier and since the addendum cannot be construed as a fresh notice in the facts and circumstances of the case, no question of law in this context arises for reference. The Reference Application is, therefore, dismissed as not maintainable in law.