TMI Blog1986 (4) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... institution, from, so much of the duty of excise leviable thereon as was in excess of 5% ad valorem, provided that an Officer not below the rank of the Assistant Collector of Central Excise was satisfied that such paper was supplied:- i) to the Directorate General of Supplies Disposals; or ii) for various educational purposes (such as, for text books, exercise books and university examinations); at the actual cash price i.e. the whole sale ex-factory price, excluding all levies, not exceeding Rs. 2750/- per M.T. Later on Notification No. 68/76-CE, dated 16.3.1976 was further amended by Notification No. 236/79 dated 25.7.79 substituting the wholesale ex-factory price of White Printing Paper to Rs. 3000/- per M.T. Before issue of the amending notification, the respondents were not entitled to clear the goods at concessional rate of duty @ 5% ad valorem showing value of goods at Rs. 3000/- per M.T. but were liable to pay duty at the rate of 25% ad valorem on the clearances of such paper during the period from 1.7.79 to 24.7.79. The respondents during this period had cleared goods worth Rs. 7,21,351.80 and the difference of duty (25% minus 5% paid) amounting to Rs. 1,44,270.36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Being aggrieved from the aforesaid order the respondent had filed an appeal before the Collector of Central Excise (Appeals). Before the Appellate Collector of Central Excise it was argued that the show cause notice dated 20-8-1982 relating to the period 1-7-1979 to 24-7-1979 was hit by limitation. The same could have been issued under Rule 10/173 and not under Section 11A of the Central Excises and salt Act, 1944 which was not in force at the time of concerned clearances. It was further contended by them that the provisions, of Rule 9(2) were not applicable as the clearances made by them were not clandestine in nature. The learned Collector of Central Excise (Appeals) had accepted the appeal of the respondents on merits and had further held that the demand was clearly time-barred and could not have been confirmed. Being aggrieved from the order passed by the Controller of Central Excise (Appeals) the Revenue has come in appeal to the Tribunal. 3. Shri B.R. Tripathi, the learned SDR, has appeared on behalf of the appellants. He has reiterated the facts. He has referred to the orders passed by the lower authorities. He has further pleaded that even earlier a show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to a judgment of the Hon. Bombay High Court in the case of Devidayal Rolling Refineries Pvt. Ltd. v. A.V. Borkar, Supdt. of Central Excise Others reported in 1983, E.L.T. 338 wherein the Hon. Bombay High Court had held that even if the notice does not describe it a show cause notice, but the contents thereof makes a recipient aware and conscious of the position, he cannot, be permitted to raise a technical argument in writ petition under article 226 of the Constitution to defeat a just demand. He has cited another judgment of the Tribunal in the case of M/s. Porritts Spencer (Asia) v. Collector of Central Excise, Delhi reported in 1985 ECR 272 wherein the Revenue had informed about the demand of duty liability to the assessee and there was exchange of correspondence between the Department and the appellants, the Tribunal had held that from that date the demand was sustainable. Shri Tripathi, the learned SDR, has also referred to a judgment of the Tribunal in the case of India Cements Ltd. v. Collector of Central Excise, Madras reported in 1984 (18) E.L.T. 499. He has pleaded for the acceptance of the appeal. 4. Shri J.S. Kapil, the learned Advocate, has appeared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shwar reported in 1983 E.L.T. 1813 (Tribunal) = 1983 (2) ETR 181 wherein the Tribunal had held that if the appellant had furnished affidavits etc. to show that the paper had been supplied to the parties within the letter and spirit of the exemption Notification Nos. 68/76 and 69/76 and the excise officer fails to verify correctness of the said affidavits and statements, an order passed by the Board confirming the demand for differential duty was not tenable in law. Shri Kapil has pleaded that in granting the benefit of exemption in terms of a particular notification, the spirit of the notification should be appreciated. He has further pleaded that in terms of provisions of Section 4 of the Central Excises Salt Act 1944, the prices always vary. He has pleaded for dismissal of the appeal. 5. In reply, Shri B.R. Tripathi, the learned SDR, has pleaded that the show cause notice is a rule of equity. The earlier show-cause notice issued by the revenue authorities is in order and is a valid show cause notice. The subsequent show cause notice issued by the revenue authorities was in continuation of the earlier show cause notice. At the worst, the subsequent show-cause-notice can be tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct:- Applicability of rate of duty consequent upon revision of actual Whole Sale Cash Price - Corres. Reg. Please refer to your letter No. 11724 dated 10.7.1979 submitting therewith revised price list effective from 1.7.79. 2. As per proviso (ii) of Notification No. 68/76 and Notification No. 69/76, both dated 16.3.76, as amended by Notification No. 162/76 dated 12.5.76, a manufacturer could only avail of exemption from so much of duty of excise leviale thereon if actual wholesale cash price of paper of a substance not exceeding 60 GSM, does not exceed Rs. 2750/- per M.T. Though the Ministry of Industry, Govt. of India, vide their order dated 30.6.79, had revised the price of white printing and cream-wove paper w.e.f. 1.7.79, yet Ministry of Finance, Govt. of India Notification No. 236/CE-79, dated 25.7.79 making you legible for concessional rate of assessment in respect of White Printing Paper not exceeding 60 GSM w.e.f. 25.7.79 only. As before the issue of the aforesaid amending Notification No. 236/79-CE dated 25.7.79 the Whole Sale Cash price of White Printing Paper, not exceeding 60 GSM cleared during the period from 1.7.79 to 24.7.79 @ concessional rate of duty of 5% Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Rules and Section 11-A of the said Act. 4. M/s. Star Paper Mills Saharanpur are further directed to produce at the time of showing cause to the Assistant Collector of C. Ex. Saharanpur all the evidence upon which they intend to rely in support of their defence. 5. M/s. Star Paper Mills Ltd., Saharanpur should indicate in their written explanation whether or not they wish to be heard in period. 6. If no cause is shown within thirty days of the receipt of this notice or they do not appear before the Asstt. Collector of C. Ex. Saharanpur when the case is posted for hearing the same will be decided on merits. Sd/- Inspector/Customs Central Excise Star Paper Mills Ltd. Saharanpur" A simple perusal of the show cause notice dated 29.12.79 shows that in para 3 there is mention of the invoking of Rule 10 of the Central Excises and Salt Act, 1944. The demand in dispute pertains to the period from 1.7.79 to 24.7.79 and the earlier show cause notice was issued on 29.12.79 i.e. within six months. The learned SDR had referred to the judgment of the Hon ble Bombay High Court in the case of Devidayal Rolling Refineries Pvt. Ltd. v. A.V. Borkar, Supdt. of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing on page J-369 is reproduced as under:- 45. I shall now take up the question of limitation. The written demand made on March 21, 1963 purports to have been made under Rule 9(2) of the rules. Therein the assessing authority demanded steel ingot duty which according to it the assessee had failed to pay. Quite clearly Rule 9(2) is inapplicable to the facts of the case. Admittedly the assessee had cleared the goods from the warehouse after paying the duty demanded and after obtaining the permission of the concerned authority. Hence there is no question of any evasion. Despite the fact that the assessee challenged the validity of the demand made on him, both the Assistant Collector as well as the Collector ignored that contention; but when the matter was taken up to the Government, it treated the demand in question as a demand under Rule 10. The Government confined the demand to clearance affected after December 21, 1962. The demand so modified is in conformity with Rule 10. But the contention of the assessee is that the demand having been made under Rule 9(2) and there being no indication in that demand that it was made under Rule 10, the Revenue cannot now change its posit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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