9911796707
TMI Blog1991 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken, which amounted to Rs. 16,117.86. This was objected to by the Department on the ground that the Gate Passes do not bear the name of the appellants and there were also no endorsements on the gate pass in their favour. A show cause notice was issued to the appellants on 5-10-1988 under Rule 57-I of the Central Excise Rules covering the period from 1-6-1987 to 30-6-1987. In the adjudication proceedings, the demand was confirmed and the appeal before the Collector (Appeals) filed by the appellants was also rejected. Hence, the present appeal before me. In the written submissions made by the advocate on behalf of the appellants, it is submitted that a show cause notice was received by the appellants only on 6-10-1988 and on the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, on the part of an officer or a manufacturer, or an assessee, the proper officer may, within six months from the date of such credit, serve notice on the manufacturer or the assessee who has taken such credit requiring him to show cause why he should not be disallowed to such credit and where the credit has already been utilised, why the amount equivalent to such credit should not be recovered from him : Provided that where such credit has been taken on account of wilful mis-statement, collusion or suppression of facts on the part of a manufacturer or an assessee, the provisions of this clause shall have effect as if for the words "six months" the words "five years" were substituted." 5. From the above it is seen that for recovery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the Supreme Court in the case of R.K. Upadhyay v. Shanabhai P. Patel reported in 1987 (32) E.L.T. 255 (S.C.) = 1987 (166) Income Tax Reports. In the aforesaid decision, the Supreme Court has held that there is a clear distinction in the wordings between "issue of notice" and "service of notice". Hence, were the wording of the statute specifies only issue of notice, the authorities are well within their powers to invoke the statute as prevalent at the time of issue of notice. However, I find that Rule 57-I contemplates service of notice within a period of six months. Hence, when such a notice has been served only on 6-10-1988, that notice ought to be in accordance with the provisions of the amended Rule 57-I. In this case, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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