9911796707
TMI Blog1994 (9) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... against Order No. PPM-2351-2352/BI-793/794/85, dated 5-3-1986 of the Collector of Central Excise (Appeals), Bombay. 2. The Collector of Central Excise (Appeals), had, vide the aforesaid order, allowed two appeals filed by the Respondent herein against the demand of duty as confirmed by the adjudicating authority, on the ground that the demands were hit by the limitation prescribed for raising such demand, as the show cause notice, contemplated under Section 11A of the CESA, 1944 was not issued within the period of six months, and that there was no scope for invoking extended period. Before the Tribunal, in the appeals preferred by the department, it was pleaded that the demand was raised during the scrutiny of RT-12 Returns, and that subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to raise the demand and notice under Section 11A would not be necessary. In the submission of the ld SDR, these two decisions indicate that the judgment of the Supreme Court is distinguishable, and when there is a scope for an alternate interpretation, reference to the High Court ought to be made. 5. Mr. V.S. Sejpal, the ld. C.A. for the Respondents submits that considering the facts and circumstances, the Bench has correctly applied the ratio of the Supreme Court judgment in Re : Kosan Metal Products, and there is no scope for any reference to the High Court. 6. To give a brief resume of the factual position, the Respondents filed RT-12 returns for the month of March, 1983 and May 1983 which were assessed on 30-9-1983 and 30-11-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department, is required to assess the same as provided for in Rule 173-I of the Rules. Kerala High Court have, in Good Shepherd Rubber Co. Ltd. v. Inspector of Central Excise, 1978 (2) E.L.T. (J 66) (Ker.) held that the said Rule enables the proper officer to assess the duty on the basis of RT-12 returns, but does not empower him to serve a notice of demand for a short levy without issuing a show cause notice and the Tribunal has in Collector v. Indian Iron and Steel Co. Ltd , 1989 (39) E.L.T. 617 (Tri.) has held that even if there is a demand on the RT-12 return, a show cause notice has to be issued within the period provided for under Section 11A of the Act. The Tribunal has, in Ideal Printers (P) Ltd v. Collector, 1990 (49) E.L.T 559 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recovery was sought, and it was at the appeal stage, against the interlocutory order passed, that the prima facie view was expressed. This judgment thus, cannot be taken as providing any contrary case law, so as to warrant reference to the High Court, against the decision arrived at by this Bench, by following the ratio of the Supreme Court judgment in Re : Kosan Metal Products, and when, as indicated above, the Kerala High Court as also the Tribunal, have also been holding the same view. 10. The CEGAT, ERB in Rasoi Ltd v. Collector (supra) though ex facie, do seem, to have held a different view, the following observation of the said Bench in para 11 of their order would make the distinguishing features explicit : "In the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment on RT-12 involves adjudication on an issue, issuance of show cause notice under Section 11A of the Act is essential and short endorsement on RT-12 return is not enough. With the set of facts and point involved being different, this decision of the ERB does not go contra to the view taken by the Supreme Court duly followed by this Bench in earlier decisions referred to above, and nothing is brought on record to show that the view, same as the one adopted in the impugned order, taken in the earlier decisions has been sought to be referred to any High Court. 11. Facts peculiar to the matter under consideration did indicate that the assessment was not to be in confirmity with the declaration made in RT-12 returns. On the contrary, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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