TMI Blog1992 (8) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs towards duty, the requirement of deposit of the balance amount of duty and full amount of penalty shall stand waived till the disposal of the appeal. Thereafter, the appellants filed a Writ Petition in the High Court of Madhya Pradesh at Jabalpur some time in the month of April, 1992 challenging the order of the Tribunal requiring pre-deposit of duty whereupon the following order was passed by a Division Bench of the High Court on 23rd June, 1992 :- M.P. No. 1588/92 Petition by Shri Abhay Sapre. He is heard on the question of admission. Having regard Shri Sapre, we think this petition can be disposed of at this stage itself. The writ petition is rejected, but we must observe that respondent No. 1, Appellate Tribunal Customs, Excise Gold (Control) shall dispose of the appeal pending before it as soon as possible, preferably within a period of three weeks from receipt of this Court s order. C.C on usual terms". 2. It is seen from the records that on 26th May, 1992 the appellants deposited an amount of Rs. 14 lakhs in the Central Bank of India, Civil Lines Branch, Raipur in pursuance of the Stay Order, dated 18-3-1992 of the Tribunal. 3. In pursuance of the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the exemption under Notification 16/90 by the same token. To a question from the Bench that if this was the correct interpretation, why did it become necessary for the Central Government to issue a notification under Section 11C of the Act for the period 28-3-1986 to 12-11-1986 and to exempt limestone by Notification 448/86, dated 13-11-1986, and subsequently by Notification 143/90, dated 17-9-1990, Shri Dave replied that this was done by way of abundant caution. His contention was that the legislature at all times intended to exempt limestone from excise duty and it became necessary to issue Notification merely to clarify the legislative intent. In this context, he referred to the decision of the Tribunal in the case of Steel Authority of India Limited v. Collector of Central Excise [1991 (54) E.L.T. 414] in which it was decided that crushing of limestone into lime fine did not amount to manufacture in terms of the definition of manufacture as given in Chapter Note (2) of Chapter 25 of the Central Excise Tariff Act. He fairly submitted that there was a contrary decision of the Tribunal in the case of Ajanta Marble and Chemical Industries v. Collector of Central Excise - 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r knew otherwise, is required before it is saddled with any liability beyond the period of six months. Shri Dave contended that in the facts of this case when the appellants were maintaining a truthful account of limestone in the prescribed form, it could not be said that they were guilty of any action with intent to evade payment of duty. 7. Arguing for the respondent-Collector, Smt. Ananya Ray, the learned Senior Departmental Representative submitted that the question for determination by the Tribunal was whether limestone was covered by the entry lime in Notification No. 16/90. She referred to the Condensed Chemical Dictionary, (Tenth Edition), Revised by Gessner G. Hawley and submitted that while the chemical composition of limestone was Calcium Carbonate, that of lime was Calcium Oxide. Lime was obtained by roasting of limestone by which Carbon-Di-Oxide was removed. Thus, chemically lime and limestone were two different articles. She disputed Shri Dave s claim that the entry lime in Notification 16/90 would cover limestone too. She also distinguished the judgment of the Tribunal in the case of SAIL (supra) and submitted that it was not applicable to the present case inas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct a particular information. The entire gamut of an assessee s operations may not come to the knowledge of the visiting officer during such selective checks. The officers were, no doubt, receiving D-3 intimations regarding receipt of duty paid pure wool tops by the appellants from outside. But it was hardly possible to deduce from these intimations whether the appellants would use such wool tops in the pure form or mix them with other fibres to a blend of over 50% wool or less than 50% wool. The appellants cannot absolve themselves of their primary responsibility of making the prescribed declarations and submitting the prescribed assessment documents and expect the authorities to gain knowledge of their operations through involved and doubtful deductions from D-3 intimations and production of other commodities. (Emphasis supplied) 9. She also referred to the decision of the Supreme Court in the case of Jaishri Engineering Co. (P) Ltd. v. Collector of Central Excise - 1989 (40) E.L.T. 214 (SC), in which the Supreme Court while dealing with the question of invoking the proviso to Section 11A(1) had held in paragraph-10 of its judgment as under :- 10. Therefore, we have to find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Replying Shri Sanjay Grover, the learned Counsel, referred to the Form IV Account and reiterated that the appellants could not be charged with intention to evade payment of duty. In the light of the reference to the Chemical Dictionary for definitions of `lime and `limestone by the learned Departmental Representative, Shri Grover did not dispute that the two were different. 12. We have carefully considered the matter and perused the appeal and the Cross Objections filed by the respondent - Collector. We observe that the factual position is as under :- (a) By Notification 271/88-C.E., dated 24-10-1988, issued under Section 11C of the Act, the Central Government had directed that the whole of the duty payable under the Central Excise Tariff Act, 1985 on limestone in any form during the period commencing on 28th Day of February, 1986 and ending with the 12th day of November, 1986 which was not being levied shall not be required to be paid in accordance with a practice that was generally prevalent. (b) From 13th November, 1986, limestone in any form was exempt from duty by Notification 448/86-C.E., dated 13-11-1986 until this Notification was rescinded on 20th March, 1990 by No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from time to time in respect of limestone, the notice proceeds to state that by not taking out a licence and not paying duty on limestone the appellants had deliberately evaded payment of duty. In the light of such an allegation, the only defence of the appellant was that limestone was not dutiable. The Collector has held that merely making entries of limestone in Form IV was not sufficient inasmuch as they did not file any classification list for limestone and such action on their part amounted to suppression of facts. We agree with the findings of the Collector on this point and in the light of the decision of the Supreme Court in Jaishri Engineering (supra) and of the Tribunal in British India Corporation (supra), the allegation of intention to evade payment of duty stands proved. 15. The reliance of Shri Dave on the provisions of the General Clauses Act for interpreting the exemption Notification may be otherwise valid but is not relevant because `limestone has been held by us to be dutiable without recourse to the interpretation placed by the learned Counsel on the word `lime in Notification 16/90. We need not, therefore, go into that question. 16. After consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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