TMI Blog1996 (9) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... he premises of the appellant and verified the records and found that appellant had issued debit notes for extra amounts and collected the same from certain customers for certain kinds of cotton fabrics over and above the invoice value in the guise of banking charges, extra stamping, folding and packing charges. Appellant was preparing computerised statements which showed, in addition to showing partywise details of sales also, recovery of extra amounts on per metre basis from certain customers for certain kinds of fabrics. The contracts (Kabalas) entered into with the buyers referred to extra amounts by figures such as +37 or A37 from 1-4- 1983 to August 1983 as +AB or AC after August, 1983. Investigation showed that these referred to extra amounts charged per metre from the customers. These extra figures shown in the contract tallied with the figures in the computerised statements referred to as bank charges, charges for stamping, folding and packing. It was seen that extra charges had been recovered by way of stamping, folding and packing during the period 1982-83 to 1983-84 and extra charges by way of bank charges (DA) during 1984-85. The collection of these amounts had not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culation errors in the annexure to the show cause notice to the tune of Rs. 12,35,645.00. 5. While the Collector rejected the contention regarding limitation and merits, he accepted that the amount claimed in the show cause notice was not correct and, therefore, confirmed the demand only to the extent of Rs. 34,18,289.90. This order is now challenged. 6. The following points have been urged on behalf of the appellant :- (1) On the merits, the Collector was in error in adding extra amounts collected on account of special folding, wrapping and packing charges and DA commission charges to arrive at the assessable value. (2) The show cause notice was barred by time. (3) Certain errors of calculation committed in the annexure to the show cause notice have not been rectified. (4) Penalty levied is not justified or, in any event, is excessive. 7. Point No. (1) - The period involved in this case is 1982-83, 1983-84 and 1984-85 and the dispute relates to certain extra payments collected from the wholesale buyers by the appellant for certain varieties of cotton fabrics without showing the charges in the invoices and raising separate debit notes. The show cause notice and the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch extra work was done. The Kabalas do not refer to such extra work or requirement of extra payment over and above the prices shown therein. (g) The extra amounts were collected only in relation to certain specified varieties of printed cotton fabrics. 9. The above circumstances lead to the definite conclusion that extra amounts were received only in regard to certain varieties of fabrics and not from certain buyers and the reasons for collecting such extra amounts as indicated in the debit notes and accounts were contradictory. The term regarding requirement of payment of such extra amount was conceived in secrecy and was indicated in secret code in the Kabalas. Secrecy, invariably is the badge of fraud. The Kabalas do not show that any extra work was done or extra facilility was offered by the appellant justifying such extra payments. The irresistible inference, in these circumstances, is that these extra amounts were collected not on account of extra folding, stamping or packing or on account of DN commission charges, but as additional amounts for the sale of fabrics. Hence, such amounts must be included in the assessable value under Section 4 of the Act. Point answered acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mandatorily required to be furnished to the excise department. There is nothing to indicate that these documents were available to excise officers or the audit parties on the occasion of their visits to the appellant s premises. If appellant bona fide believed that extra payments were not dutiable, the same would not have been indicated in the Kabalas in secret code and contradictory indications would not have been given in the debit notes on the one hand and the accounts and balance-sheets on the other. All these circumstances clearly establish the ingredients necessary for the applicability of the proviso to Section 11A of the Act. Therefore, the show cause notice was within time. Point answered accordingly. 11. Point No. (3) - The annexure to the show cause notice indicates the particulars of the relevant invoice values, extra amounts collected, the differential duty for each of the three years. The extra amounts collected were shown as Rs. 16,53,325.53, Rs. 18,09,415.50 and Rs. 18,92,408.00 respectively. In the reply to the show cause notice, factually, the appellant objected to Rs. 9,11,248.00 for 1982-83 and Rs. 1,47,204.00 for 1983-84, besides refer- ring to an alleged c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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