TMI Blog1996 (11) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... o to Section 11A for invoking the longer period for reason of suppression of facts have also been invoked. 2. The learned Counsel has pleaded that for the very same period for which duty has been raised under the impugned order a SCN was also issued on 30-6-83 answerable to the Asstt. Coll. and under which a duty demand of Rs. 1,28,966.30 was demanded. He has pleaded after considering the appellants reply to the SCN the proceedings did not culminate in any adjudication order by the Asstt. Coll. Subsequently, another SCN dated 11-2-86 came to be issued by the Collector for the same period invoking Section 11A proviso. Suppression was alleged against the appellants. He has pleaded as it is the second SCN issued would be barred by limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n before the Asstt. Coll. All necessary documents required for the purpose of adjudication had also been furnished. He pleaded that there was no warrant as to the circumstances under which the Department felt the necessity to issue a second SCN under the signature of the Collector for showing cause to the Collector. In the circumstances, the penal action under Rule 173Q and other provisions of law invoked by the Collector therefore could not have been taken against the appellants. The learned Collector in his adjudication order has clearly taken note of the fact that the departmental authorities had in their possession all the documents prior to January, 84. After having come in possession of the documents which might have indicated suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collections from the event of clearance of the goods. 4. We have considered the pleas made by both sides. We observe that admittedly the position is that the appellants had declared much lower price than the amounts which were actually being collected by them from their customers in respect of the sale of the VCRs. The charges in question were in respect of raising of supplementary invoices which has been described as pre-delivery inspection charges, technical service charges, handling charges and guarantee service charges. Aggregate of the two amounts almost comes near to the sale price as declared in the price list. The documents recovered from the appellants and the inter-office memos as pointed out by the learned DR clearly go to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, while the proceedings in terms of this SCN were pending, the Collector took upon himself to adjudicate the matter and on going through the facts apparently he found that there was enough evidence on record to say there was suppression of facts and which were not held to be so by the authority who issued the first SCN. In this background, therefore, the question to be decided would be whether the second SCN issued was legally maintainable and also whether the same can be taken to be barred by limitation. We observe at the time when the price list was filed there was a suppression of fact on the part of the appellants. In these circumstances, the taint of suppression attaches to the goods in question which were cleared by payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be accepted by us. The legislature has clearly provided the period for the issue of SCN as five years, when there is a suppression of facts. Nothing more can be read into Section 11B. If the Legislature intended that the period of five years would be available only for investigation purpose and not for issue of SCN, they would have spelt it so in Section 11A. Section 11A deals with only limitation for issue of a SCN. The same view has been held by the East Zonal Bench of the Tribunal in the case of M/s. Asia Insulated Wires Pvt. Ltd. v. CCE reported in 1996 (66) ECR 479. Para 7 of the order is reproduced below for convenience of reference :- 7. We have carefully considered the submissions of both sides. In terms of the Central Excise L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the knowledge of the Department as and when the requisition of bills was made by the Department and therefore, there has been no suppression of facts by the appellants herein and the time-limit of five years should not be available, cannot be accepted since it is very clear that at the time of clearances of goods, they had suppressed the fact of charging higher duty from the customers while the invoices were made. The subsequent knowledge gathered by the Department from their Bills as per the aforesaid correspondences would not confiscate the limitation of five years available to the Department in terms of the plain reading of Section 11A of the Central Excises and Salt Act, 1944. It may be mentioned that Section 11A does not lay down th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
