TMI Blog1996 (8) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... factory site at Balanda without Central Excise licence, and removed the same without payment of Central Excise duty and without observing Central Excise formalities there by contravening Rules 9(1), 52A, 53, 54, 173B, 173C, 173F and 173G of the Central Excise Rules, 1944. It was also alleged that by the foregoing, the appellants herein wilfully suppressed the fact of manufacture, and removal of excisable goods from its manufacturing place during the period of 1-3-1986 to 23-5-1986 and thus evaded Central Excise duty to the tune of Rs. 52,469.81 on 2407 cartridges of LOX valued at Rs. 3,49,798.75. The appellants were, therefore, asked to show cause notice as to why the aforesaid duty be not recovered under Rule 11A of the Central Excise S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving a different name, character and use has come into existence, namely LOX (prepared explosives) and it is being marketed as such. Ld. SDR, while reiterating the aforesaid findings of the adjudicating authority has relied upon Tribunal s following judgments on ANFO explosives reported in : (i) 1988 (37) E.L.T. 361 (Singareni Collieries Co. Ltd. v. C.C.E.) (ii) 1989 (40) E.L.T. 159 (Associated Cement Co. v. C.C.E.) (iii) 1989 (40) E.L.T. 413 (Kesoram Cement v. C.C.E.) 2.4 We have carefully considered the pleas advanced from both sides. We agree with the adjudicating authority that a product different from its inputs (Jute stick powder, bags liquid oxygen), namely Liquid Oxygen Explosive (LOX) has come into existence. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice for demand of duty is barred by time. It has been contended that the appellants vide their letter dated 27-3-1986 brought it to the notice of the Department about their activities, although that letter was wrongly addressed to the Assistant Collector of Central Excise, Angul. Later on in May 1986, they applied to the correct Assistant Collector and obtained the Central Excise licence w.e.f. 24-5-1986. In view of these circumstances and conduct of the appellants, ld. Advocate has emphasised that the question of wilful mis-statement or suppression of facts even during the period immediately preceding 24-5-1986 did not arise. Hence the show-cause notice is barred by time inasmuch as it has been issued more than two years after obtaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessee s activities. Plea of the ld. Advocate that show-cause notice should have been issued within six months of the date of knowledge (i.e. 24-5-1986) acquired by the department does not have the sanction of law. Nowhere, the definition of relevant date in Section 11A(3) speaks of the date of knowledge acquired by the department. 3.4 As regards the plea of bona fides of the appellant in not declaring to the department during the relevant period, we find that this plea also has no substance. We observe that the appellants themselves have stated that they wrote a letter to the Department on 27-3-1996 but it was not correctly addressed. It is, therefore, clear that they intended to inform the Department about their activities of manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisability as dealt with in the course of the first plea. Now that this dispute has been resolved against them, it would not be correct in law to deny them the benefit of Modvat credit, if otherwise admissible to them, hence we direct that benefit of Modvat credit be extended by the adjudicating authority, if he is satisfied that the `inputs and the `final product are covered by Notification 177/86 under Rule 57A and that the duty paid inputs have been utilised in the manufacture of LOX on which duty is now demanded for the period 1-3-86 to 23-5-1986. 5.1 Next question is about the valuation of the goods. It is stated by the appellants that they have charged Rs. 145/- per cartridge inclusive of duty. Adjudicating authority on the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
