9911796707
TMI Blog1992 (1) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... concessional rates have been provided for straw board cleared by any manufacturer for home consumption during the financial year as follows :- (a) On the first 500 M.T. @ 15% ad valorem. (b) On the next 500 M.T. @ 25% ad valorem. The appellants had been clearing straw board from their factory at Ratlam after paying concessional rate of duty applicable vide the aforesaid notification but on scrutiny of the bills and invoices issued by them to their customers, it was noticed that they have recovered C.E. duty from their customers at the full tariff rate i.e. 40% ad valorem. This excess realisation in the garb of duty by the appellants herein enhanced the assessable value and show cause notices were issued by the department demanding differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal period was over and the review procedure could not be made use of circumventing the limitation for filing the present appeal before the competent authority. Hence this appeal before the Tribunal. 2. Shri A.C. Jain, learned advocate for the appellants has contended that all the show cause notices are not maintainable inasmuch as after amendment of Section 4 by insertion of the Explanation to Section 4(4)(d)(ii) the show cause notices should have been issued afresh since the basis for issuing the show cause notices in the instant cases was lost and a fresh basis in view of the said Explanation could be invoked. He submits that this is the true ratio of Supreme Court's judgment in the case of J.K. Cotton Spg. & Wvg. Mills as repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d adjudicating authority on its own. Therefore, in that light the learned advocate has submitted that the order-in-original passed by the Assistant Collector is not tenable in law and vitiated by the non-application of the mind. We find that the learned advocate is factually wrong in his submission. The adjudicating authority has been guided in arriving at its decision not by the Press Note but by the retrospective amendment of Section 4(4)(d)(ii) vide clause 47 of the Finance Bill, 1982 made retrospectively effective from 1st day of October 1975. In view of the change in legal position, nothing is left much for the appellants to argue that it is only effective duty payable by the appellants which is required to be deducted from cum-duty-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the shorter period of six months stipulated in Section 11A(1) (Rule 10, as it stood earlier) would not apply inasmuch as the excess recovery was being made by the appellants through their invoices and bills issued subsequently by the appellants. Such excess recovery made by the appellants in their invoices and bills was not reflected either in the gate passes or R.T. 12 returns submitted by them and finalised by the department. It was, therefore, a case of suppression of fact of excess recovery by the appellants. This is evident from the statement of facts mentioned in the order-in-original when it states :- "..................on scrutiny of the bills and invoices, both to their customers, it was noticed by the Inspector of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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