TMI Blog1987 (9) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... 14DD, cleared in a financial year for home consumption up to aggregate value not exceeding Rs. 5 lakhs were exempted from Central Excise duty provided that the aggregate value of the specified goods cleared during the preceding financial year did not exceed Rs. 15 lakhs and provided further that when a manufacturer was manufacturing other excisable goods (i.e. the goods other than specified goods), such aggregate value of all the excisable goods cleared during the preceding financial year should not have exceeded Rs. 20 lakhs. The appellants cleared synthetic Organic Dyestuffs valued at Rs. 7,08,689.25, Synthetic Organic Products valued at Rs. 12,88,204.90 and goods falling under T.I. 68 valued at Rs. 1,26,539.29 i.e. total value being Rs. 21,23,433.44 during the year 1978-79. During the financial year 1979-80, they availed of exemption in respect of Rs. 5 lakhs each on Synthetic Organic Dyestuffs falling under T.I. l4D and Synthetic Organic Products falling under T.I. 14DD. As the value of total clearances of all the goods manufactured by the appellants in 1978-79 exceeded Rs. 20 lakhs, a show cause notice dated 24.12.1979 was issued to them by the Central Excise Range Officer de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants were eligible for exemption of the Central Excise duty under the aforesaid Notification, for the clearances done in 1979-80. He has also stated that if it is held that the benefit of exemption was not admissible to the appellants for the year 1979-80, then the element of excise duty of Rs. 2,99,671.75 should be deducted from the value for the purpose of arriving at the assessable value. The learned Consultant has further argued that the demand show cause notice was issued under Rule 10 of the Central Excise Rules and confirmed under Section 11A of the Central Excises and Salt Act, 1944. Duty has been demanded by the Department for the period starting from 1.4.1979, whereas the notice was issued on 24.12.1979. There was no suppression of facts by the appellants as the officers knew about the goods falling under Tariff Item 68. Those goods were declared in the classification list. The classification list dated 4.4.1979 was approved by the Central Excise Officer on 19.7.1979 without any objection. Item 68 goods were also declared in the appellant s letter dated 10.4.1979 addressed to the Superintendent of Central Excise, Range No. VI, Div. II, Ahmedabad. As there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able in this case. The demand for duty was not, therefore, barred by limitation. In support of this argument, the learned JDR has relied on the decision of this Tribunal reported in 1986 (25) E.L.T 843. 5. For proper appreciation of point No. (i) we would like to reproduce below the relevant portions of Notification No. 71/78-C.E., dated 1.3.1978, as amended by Notification No. 141/79, dated 30.3.1979 : In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts the excisable goods of the description specified in column (3) of the Table hereto annexed (hereinafter referred to as the specified goods"), and falling under such Item Number of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), as is specified in the corresponding entry in column (2) of the said Table, in respect of the first clearance of such excisable goods for home consumption upto an a ggregate value not exceedng rupees five lakhs and cleared on or after the 1st day of April in any financial year by or on behalf of manufacturer, from one or more factories, from the whole of the duty of excise leviable thereon, subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t dyestuffs), Synthetic Organic Derivatives used in any dyeing process. 10. 14DD Synthetic Organic Products of a kind used as Organic Luminophores Products of the kind known as optical bleaching agents, substantive to the fibre. xxxx xxxxXxxx Notification No. 71/78-C.E. was effective from 1.4.1978. Condition (iii) in (a) of paragrah 1 and Explanation IV were introduced by amending Notification No. 141/79, dated 30.3.1979 and the same were effective from 1.4.1979. According to the definition in Section 2(d) of the Central Excises and Salt Act, 1944, excisable goods means goods specified in the First Schedule as being subject to a duty of excise and inlcuded in it. 8. Similar questions as in the present case came up for consideration before this Tribunal in Piya Pharmaceutical Works v. Collector of Central Excise, Meerut and the Tribunal examined the matter in details and held in its Order No. 171/84-C, dated 28.3.1984, reported in 1985 (19) E.L.T. 272, that even if the goods were exempted from duty, they continued to be excisable goods and the character of products as excisable goods did not depend on the actual levy of duty, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be that before the amendment there was no cut off limit of Rs. 20 lakhs for past clearances of heterogeneous goods nor was there any explanation of the type introduced by Notification No. 141/79-C.E. Therefore, the factory continued in its belief that it could still claim the exemption that it had apparently been enjoying in the past years. The Delhi High Court held in Vishal Andhara Industries v. Union of India - 1983 E.L.T. 2269 that even if the goods are exempted from excise duty they did not cease to be excisable goods. The Madras High Court also decided in Handloom Weavers Co-operative Society v. Assistant Collector of Central Excise, Erode, 1978 E.L.T. J-57 that even if the goods are exempted from duty it continued to be excisable goods and the character of products as excisable goods does not depend on the actual levy of duty but on the description as excisable goods in the Tariff Schedule. The judgments we have quoted here were later judgments than the one that M/s. Piya Pharmaceuticals claim they relied upon. This is to say nothing of our doubt that M/s. Piya Pharmaceuticals actually relied upon the judgment as they claim they did." 9. The learned Departmental Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le goods. Accordingly, their value was includable in the aggregate value of clearances for purposes of Notification No. 89/79-C.E. (iii) 1986 (7) ECR 45 (CEGAT) = 1986 (25) E.L.T. 318 (Tribunal) M/s. Indye Chemicals, Ahmedabad v. Collector of Central Excise, Ahmedabad. The findings of this Tribunal were inter alia as follows :- In view of these specific provisions as regards exclusions, there is a natural presumption that there was a deliberate decision not to bring within the purview of such relief, exemptions available under other Notifications which have not found mention in this Notification for purposes of the aforesaid exclusion in the computation of value limits. In the case referred to herein M/s. Indye Chemicals Ahmedabad, were manufacturers of Synthetic Organic Dyestuffs, falling under Central Excise Tariff Item No. 14D. Under Notification No. 180/61-C.E., dated 23.11.1961, rapidogens, falling under Item No. 14D-CET, were exempted from whole of duty of excise leviable thereon, if such rapidogens were manufactured from other dyes on which excise duty or Countervailing Customs Duty, as the case may be, has already been paid. The appellants in that case were availing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Karnataka Cement Pipe Factory, Industrial Estate v. Superintendent of Central Excise and Another, decided on 18.10.1985, whereas Patna High Court decided the case of Madhav Mills Pvt. Ltd. on 21.1.1981. Besides, the decision has been noticed by the Tribunal in its decisions and Tribunal has followed the Delhi High Court decision in Vishal Andhra Industries case and the Karnataka High Court decision for inclusion of value of such clearance. 12. Regarding the question of limitation, the learned Departmental Representative relied on the decision of this Tribunal in the case of Piya Pharmaceutical Works v. Collector of Central Excise, Meerut [1985 (19) E.L.T. 272 (Tribunal)] and the decision of this Tribunal in the case of Neksha Pharmaceuticals, Vapi v. Collector of Central Excise, Baroda, reported in 1985 (22) E.L.T. 561 (Tribunal). In the latter decision, this Tribunal held that extended time-limit under Section 11-A of the Central Excises and Salt Act, 194 was not applicable unless any fraud or mis-statement or suppression of facts could be alleged. In the present case, the Department s allegation is that the appellants suppressed the clearances of goods falling under I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy the bounty, always keeping in mind the fact that the time may come when the siusidy will be withdrawn, whereupon at such time, as a beneficiary under the law, he must desist from eating the fruits when they are no longer meant for him. The right thing for him is to forebear and to abstain - it is not right that he should reason with himself and say I shan t stop unless I am stopped . The line between this and deception is very thin.". We do not find sufficient justification to take a different view than the one already taken by this Tribunal in the above decision. We, therefore, hold that there was suppression of facts on the part of the appellants in the present case and the demand for duty beyond a period of six months was valid according to law. The appellants contention regarding limitation is, therefore, rejected. 13. The learned Consultant for the appellants raised a point that the amount of excise duty should be deducted from the assessable value if the Central Excise duty demanded from them is required to be paid. He has cited judgment of Supreme Court reported in 1985 (21) E.L.T. 9 (S.C.) in support of his contention. In the case of Bata Shoe Company (P) Ltd. and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
