Customs, Excise and Gold Tribunal - Delhi
Collector Of C. Ex. vs Kinjal Electricals (P) Ltd. on 31 August, 1987
Equivalent citations: 1990(45)ELT109(TRI-DEL)
ORDER
G. Sankaran, Senior Vice-President
1. M/s. Kinjal Electricals (P) Ltd., Ghaziabad, submitted a classification list dated 28-6-1977 declaring lamp holders as falling under Item No. 68 of the Central Excise Tariff Schedule. It appears that pending approval of the classification list, the respondents cleared the goods under that item. The department, however, felt that the goods were correctly classifiable under Item No. 61 of the CET with effect from 18-6-1977. On 17-12-1977, the Inspector of Central Excise issued a peremptory demand to the respondents directing them to deposit Rs. 19,562.11 towards duly which had not been paid by them on lamp holders falling under Item No. 61, CET, since 18-6-1977. Later on, the department seems to have found that the correct amount should have been Rs. 26,082.85. Accordingly, a show cause notice was issued on 3-2-1982 under Central Excise Rule 10 read with Section 11A of the Central Excises and Salt Act, 1944. In due course, the Assistant Collector passed an order on 15-5-1982 confirming the demand. On appeal, the Collector of Central Excise (Appeals), by his order dated 9-3-1983, held that the Inspector's peremptory demand dated 17-12-1977 not being a proper notice in terms of Rule 10/Section 11A, the demand was barred by limitation and on this basis, set aside the demand and allowed the appeal. It is against this order that the Collector of Central Excise, Meerut, has come in appeal before us.
2. We have heard Shri Balbir Singh, Sr. D.R. for the appellant/Collector and Shri N.C. Sogani, Consultant, for the respondents.
3. The grounds urged in the appeal and the submissions made by the Sr. D.R. in support thereof are untenable. It is urged that the Inspector had issued the demand within time and that the fact the respondents were asked to pay the duty amount by the Inspector's letter dated 17-12-1977 was sufficient to overcome the bar of limitation. It is urged and, in our opinion, strangely (to put it mildly) that the subsequent issue of show cause notice for the purpose of confirmation of the demand can in no way effect the original demand issued by the proper officer for the purpose of time bar. As we have already noted, the Inspector's letter was a peremptory direction to pay a certain sum and the respondents were not called upon to show cause nor were they given an opportunity to put forth their case. The requirement of a show cause notice was mandatory. A show cause notice, as required by law, was issued only on 3-2-1982, that is, long after the expiry of six months from the period to which the demand related. This notice, therefore, is, as the Collector (Appeals) has rightly held, barred by limitation. We note from the impugned order than an even stanger argument had been advanced by the Assistant Collector in confirming the amount demanded in the show cause notice of 8-2-1982. It was that the respondents had classified their goods under Item No. 68 in the classification list submitted by them whereas the correct classification was under Item No. 61. Apparently, the Assistant Collector considered this as a wilful mis-statement or suppression of facts by the respondents. Classification, as the Collector (Appeals) has rightly observed, is the function of the assessing officer. The duty of the assessee is to render a correct description of the goods. No charge had been levelled that there was incomplete, wrong or mis-description of the goods. In the circumstances, the question of invoking the extended period of limitation simply did not arise.
4. The appeal is devoid of any merits and is, accordingly, dismissed.