TMI Blog1989 (1) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... horns for motor vehicles and claimed the benefit of the Notification No. 71/78 and had made clearance of the horns to the tune of Rs. 4,96,760.20 up to GPI 82 dated 5-7-1982. The scrutiny of invoices, however, showed that they had collected Central Excise duty amounting to Rs. 1,04,297.35 and which was not reflected in the value of the goods as shown in the Gate passes. 2. The lower authorities after adding the duty element collected found that the appellants had made clearances in excess of the exempted limit of Rs. 5 lakh and duty to the tune of Rs. 21,222.10 was demanded from them under Rule 10 of the Central Excise Rules, 1944. A show cause notice was issued in the proceedings to the appellants on 5-9-1979 demanding duty in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression as such. 7. He pleaded since the ingredients required for invoking the longer time-limit of five years as set out in the proviso to Rule 10 as applicable are there and in the show cause notice necessary facts in this regard have been set out, there was no legal informity in the lower authority s order. He, in this connection, cited the case of Cheran Engineering Corporation v. C.C.E., Coimbatore [1986 (26) E.L.T. 611]. He pleaded once it is shown that the suppression of facts is there, the demand is within time in terms of proviso to Rule 10 as application at the relevant time. 8. The learned Consultant for the appellant, Shri Vardarajan pleaded that the fact of non-inclusion of the Central Excise Duty was known to the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts by such person or his agent, or (b) where any person or his agent, contravenes any of the provisions of these rules with intent to evade payment of duty and has not paid the duty in full, or (c) where any duty has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by such person or his agent, the provisions of this sub-section shall, in any of the CASES CITED to above, had effect as if for the words six months the words five years were substituted." It is seen that the extended time period can be invoked only if it is established by the Department that the short-levy was the result of suppression of facts by the appellants. The term of Suppress and Suppression in the Concise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppression of fact. We observe that before the lower authorities all along, the appellants have been taking the plea that so far as the duty element is concerned whether they pay to the Department or not, the same was not required to be included for computing the value of the goods. In fact, there was at the relevant time a view held by some and also there was a judgment of the High Court later that for the purpose of arriving at the assessable value under Section 4, the duty as leviable under the Tariff irrespective of whether a lower rate of duty or nil rate of duty was actually payable in terms of a notification was required to be abated from the sale price and later by an amendment to the Act, the position in regard to this was clarified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be proper for invoking the longer time period. The Tribunal in various decisions have held that unless the allegation of suppression of fact was made or the circumstances in regard thereto are set out even if the term suppression of fact as such is not used but the circumstances set out in the show cause notice are such that these clearly bring out the fact of suppression, the longer time period cannot be invoked. In the present proceedings, the show cause notice does not contain any facts as to how the appellants are guilty of suppression of fact in regard to the assessable value. We, therefore, hold that the demand having been raised beyond the period of six months is not maintainable in law and therefore set aside. 11. The appeal is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
