9911796707
TMI Blog1990 (6) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ise licence as their value of clearance during financial year 1977-78 was less than 80% of the exemption limit, which was a fact and as per their claim the value of plant and machinery installed was less than Rs. 10 lakhs. 1.3 It appears from the record in response to a letter dated 19th April, 1978 from the Supdt. of Central Excise the appellant vide their letter dated 28th August, 1978 informed that the capital investment made by them on plant and machinery is Rs.6,83,130/- only. In support thereof they enclosed a photocopy of a Chartered Accountant's certificate and a statement from Government registered and approved Valuer on whose report the Chartered Accountant had given a certificate. According to valuation made by the approved valuer the value of the plant and machinery as on 30-8-1974 was indicated as Rs.4,95,200/-. It was also intimated that they had added machineries worth Rs. 1,88,130/- only during the period subsequent to 30-9-1974. For the machineries so added, details of machinery, value and bill nos. and dates when, and names of the parties from whom they purchased the said machinery were also enclosed. The total investment on plant and machinery thus added to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector of Central Excise upheld the charges stated in the show cause notice and therefore, demanded the duty of Rs.2,57,813.96p and has also imposed a penalty of Rs.1,00,000/- under the aforesaid rules. 2. Learned advocate Shri V.J. Taraporevalla arguing for the appellants has urged that the impugned order passed by the Collector of Central Excise, Thane is bad in law and against the reported judgments of the Tribunal. He submits that by Notification 105/80 dated 19-6-1980 Explanation I thereto read as follows:- "Explanation I-While determining the sum total of the value of the capital investment, only face value of the investment at the time when such investment was made shall be taken into account, but the value of investment made on plant and machinery which have been removed permanently from the industrial unit or rendered unfit for any use shall be excluded from such determination." [emphasis supplied by the Ld. advocate] He submits that the emphasised portion above was not there in the preceding Notifications namely 89/79 dated 1-3-1979 and 176/77 dated 18-6-1977. Nevertheless, the Tribunal has held in the following judgments that the aforesaid addition made in the notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction of Bisphenol cannot also be said to have been "rendered unfit for any use" inasmuch as the appellants themselves in their classification list have declared Bisphenol as an item to be produced by them. In these circumstances, the value of plant and machinery for production of Bisphenol was required to be taken into account in computing the total investment on plant and machinery and therefore, the certificates submitted by the appellant company before the Asstt. Collector in 1978 and 1979 misled the Asstt. Collector to grant them exemption. Therefore, the demand of duty by show cause notice dated 18-11-1981 is well within time of five years of the removal of the goods and therefore, fully sustainable in law. He, therefore, urges that the appeal be dismissed as being without any merits. 4. Replying, the learned advocate has submitted that the benefit of exemption notification could be granted by the Asstt. Collector after he was satisfied with all the materials placed before him. He submits that the Asstt. Collector had not merely gone on the certificates of the Chartered Accountants and of the approved valuer produced by the appellants but he had also made independent enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the certificates produced by the appellants in bona fide belief but also on the basis of his independent enquiry as he was supposed to do, because primarily it was his satisfaction which was arrived at before extending the benefit of the notifications. The department, on the other hand, insists that the Asstt. Collector has been misled only by the certificates produced by the appellants and in view of the certificates he did not apply his mind independently. We do not find on record whether the Asstt. Collector had applied his mind independently apart from the certificates produced by the appellants. No evidence has been brought on record by the appellants that the Asstt. Collector before extending the benefit of the notification considered any other material or made independent enquiries; nor has the department produced any evidence by way of the proceedings before the Asstt. Collector whether the latter applied his mind independently of the certificates produced by the appellants. 6. It is true that the benefit of notification can be extended only if the Asstt. Collector is satisfied, inter alia, that the capital investment on plant and machinery installed in the industrial unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances in view, we are inclined to believe that the non-inclusion of capital investment on plant and machinery for production of Bisphenol was also deliberately suppressed by the appellants and it was not a mere question of their bona fide belief as contended by the learned advocate. Accordingly, the time limit of five years has been rightly invoked by the learned adjudicating authority for demand of duty. 8. In view of the foregoing facts and circumstances, we do not find any merit in the appeal and therefore, reject it. 9. [Assent per : G. Sankaran, President], - I have gone through the order proposed by learned Brother Shri P.C. Jain. It is seen that the first valuation certificate talks of inspection of the factory and valuation of machinery and plant installed therein as on 30-9-1974. This could be possibly interpreted in two ways, namely, that the valuation was of the machinery and plant installed as on 30-9-1974 or valuation was as on 30-9-1974 of the machinery and plant installed there as on the same date. However, any doubt in this matter is set at rest by the operative part of the certificate which reads :- ".......... I hereby certify that the total valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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