TMI Blog1988 (8) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... ed declaration in terms of Notification No. 2/81 for exemption from licencing control inasmuch as they declared that the clearances of their medicine during the preceding financial year did not exceed Rs.6,00,000/-. In declaring this clearance value of medicines, it is admitted that the appellants herein did not include the value of pharmacopeal medicines which were fully exempted wider Notification No. 55/75, dated 1.3 1975 under Tariff Item 68. The department has alleged and found in the impugned order that the appellants herein deliberately suppressed the clearance value of pharmacopeal medicines and did not include the value thereof in the clearance value of the PP medicines. This deliberate suppression of facts, according to the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration which the appellants made for seeking exemption from the control under Notification No. 2/81. He states that this position became clear only after publication of the judgment of Delhi High Court in the case of Vishal Andhra industries v. Union of India [1983 ELT 2265 (DELHI)]. On the other hand the learned JDR appearing for the Department points out that this plea no force. Firstly for the reason that such a plea was not taken by the appellants herein before the adjudicating authority. The plea taken before the adjudicating authority was that pharmacopeal medicines were treated by them as PP medicines falling under Tariff Item 14E, and since they were exempted, they were not included for the purpose of declaration under Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther urges that in any case there is no positive evidence of deliberate suppression of facts with a view to evade payment of duty. For this proposition the learned advocate relies upon the decisions of this Tribunal in the following cases: 1. M/s National Dyeing Centre and Others v. Collector of Central Excise, New Delhi [1988 (35) ELT 551.. (Tribunal)]. 2. Kaytu Chemicals Ltd. v. Collector of Central Excise, Bombay -1 (minority decision) [1998 (35) E.L.T. 641 (Tribunal)]. 3. Poona Bottling Company Ltd. v. Union of India [1988 (35) ELT 627, Bombay]. 5. He also takes support on the fact that the Department was in knowledge of the appellants manufacturing pharmacopeal products inasmuch as lables of pharmacopeal medicines were approved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger time limit is invoked by the Department. Wilfulness and intent are expressions of mental state of, at the time of doing, or omitting to do an act by a person. Only that person concerned knows about the wilful or intentional act of his. In such situations it is futile to look for a positive evidence of wilfulness or intent of an action or non-action. Accordingly averment of wilful misstatement, suppression of fact or contravention of any rule with an intent to evade payment of duty has to be made from the overall facts and circumstances available in each case. No hard and fast rule can be laid down for making this averment. In the instant case we observe that the appellants have not made the correct declaration of production of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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