Customs, Excise and Gold Tribunal - Delhi
Hindustan Syringes Pvt. Ltd. vs Cce on 12 August, 1998
Equivalent citations: 1999(80)ECR64(TRI.-DELHI)
ORDER
U.L. Bhat, J. (President)
1. This appeal is directed against Order-in-Original No. 105/93 dated 15.10.1993 passed by the Collector of Central Excise, New Delhi confirming the demand of Rs. 9,86,223 against the appellant under Section 11A(1) of the Central Excise Act, 1944 and imposing penalty of Rs. 50,000 under Rule 173Q of the Central Excise Rules, 1944.
2. Appellant, engaged in the manufacture of hypodermic syringes, during the relevant period 1988 to 1992, was selling the goods to wholesale dealers and was also selling a part of the goods to UNICEF under a contract entered into in response to global tenders. Appellant filed price lists in Part I declaring the wholesale price to dealers. Appellant did not file price lists in Part II declaring the price payable by UNICEF, which was to be paid in US Dollars. Appellant was clearing the goods sold to wholesale dealers as well as to UNICEF on payment of duty on the approved prices in price lists in Part I. In respect of the aforesaid period it was found subsequently that Indian rupee equivalent of the price paid by UNICEF in US Dollars was higher than the approved price. Accordingly show cause notice dated 10.3.1993 was issued referring to the above facts and alleging failure to file price lists in Part II, suppression of higher price charged to UNICEF and misdeclaration of value in the relevant gate passes, with intention to evade central excise duty and proposing demand of differential duty on the basis of the actual price received from UNICEF and invoking larger period of limitation under the proviso to Section 11A(1) of the Act. Appellant resisted the demand on merits and on the ground of limitation. The Collector of Central Excise overruled this contention and confirmed the demand and imposed penalty.
3. The main contention urged by the Learned Counsel for the appellant is that the show cause notice was barred by time. Appellant accepts that price lists in part 11 were not filed with regard to goods to be supplied to UNICEF and that price lists in Part I reflected only the wholesale price to dealers in India and did not disclose the price payable by UNICEF.
4. It is pointed out that relevant gate passes which showed lower assessable value and the relevant invoices of UNICEF which showed higher price had been filed along with monthly KT 12 Returns and the Returns had been finalised. At page 146 of the paper book is a copy of one of the invoices. This invoice shows the selling price and total price in US Dollars and also excisable value in Indian Rupees. The contention of the appellant is that the price in US Dollars received from UNICEF had been disclosed at the time of filing monthly RT 12 Returns. The answer of Shri K. Srivastava, SDR is that while disclosing price in US Dollars, the appellant indicated in the invoices excisable value in Indian Rupees thereby making the department believe that the excisable value in Indian Rupees represented equivalent of the price in US Dollars furnished in the invoices. It is pointed out that sample verification by converting price in US Dollars mentioned in one invoice with excisable value mentioned therein in Indian Rupees would have- shown to the department that the excisable value was less than the price shown in the invoice. This circumstance has to be taken along with the fact that the appellant was availing cash compensation scheme, a circular in regard to which is seen at pages 27 and 28. Appellant points out that under this scheme the appellant was entitled to 100% reimbursement of the central excise duty paid by the appellant in regard to supplies made to UNICEF. Copies of relevant gate passes and application for reimbursement are in the paper book. Copies of the relevant documents show that the appellant was, in fact, receiving 100% reimbursement of the excisable duty paid on these transactions. Appellant was thus clearly aware that whatever excisable duty was paid would be reimbursed to the appellant. Having regard to all the circumstances it would not be appropriate to conclude that the failure to disclose in the price lists the contract price for supply to UNICEF was wilful or deliberate or with intent to evade central excise duty. In this view, proviso to Section 11A(1) cannot be invoked and the show cause notice would be barred by time.
5. For the reasons aforesaid, the impugned order is set aside and the appeal is allowed.