TMI Blog1999 (7) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... terials i.e. rails were being supplied for Ministry of Railways, Railway Board, as free supply material without any cost. The goods were being fabricated as per the drawing provided by the Railways. 2. The dispute involved in the present appeal is as to whether the cost of the free supply material by the Railways was liable to be included in the assessable value of the final product or not during the period from 7-4-1987 to 31-8-1991. The said legal issue, in fact, is not open for arguments and has been settled in the appellants own case , i.e. M/s. Burn Standard Co. Ltd. v. Union of India reported in 1992 (60) E.L.T 671. In a later judgment in the case of Texmaco Ltd. v. Collector of Central Excise, Calcutta reported in [1995 (77) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records as follows: - .....Excise duty as may be legally leviable and paid by the contractor, will also be borne by the purchaser. The above clause in the Contract clearly reflects upon the understanding between the appellants and the Ministry that the final product is an excisable item leviable to duty of excise. We do not find any merits in this contention of the appellants and reject the same. 4. Shri B. Saha learned Counsel has strongly argued that the demand of duty is barred by limitation inasmuch as the show cause notice has been issued after the normal period of six months and by invoking the larger period, by alleging suppression against the appellants, submitted that the show cause notice even raises the demand for a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the law was not very clear at the relevant time and it was only after pronoucement of the judgment in the case of Ujagar Prints passed by the Honourable Supreme Court that the law was laid down. He submits that it is a settled law that after issue of the earlier show cause notice, the subsequent notice, if any, on the same ground, has to be issued within a period of six months. It is not understood as to why the Department having issued the first notice in the year, 1987, waited right upto 1992 for raising the demand for the period subsequent to 7-4-1987. He also submitted that the Department was a party to the Writ Petition filed by the appellants in the High Court of Calcutta and as such, cannot plead ignorance. In the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Notification was withdrawn with effect from 28-2-1986. As such, the appellants were required to furnish necessary information when the entire tariff was changed with effect from 28-2-1986. He submits that the appellants were duty-bound to follow the earlier adjudication order of 1989 vide which the duty as proposed in the show cause notice of 7-4-1987, was confirmed by holding that the value of the free supply material is required to be included in the assessable value of the final product. He submits that even after passing of the Order by the Commissioner, the appellants did not start paying the duty on the full intrinsic value and instead, kept on clearing the goods on payment of duty on fabrication charges only, without informing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law as declared by the Hon ble Supreme Court in the case of Ujagar Prints the appellants should have included the value of cost of the raw-materials supplied by the Railways, as they were very much aware of the said problem having contested the earlier adjudication order in the Calcutta High Court. In view of the foregoing submissions, he prays for rejection of the appeal on the point of limitation. 8. We have considered the submissions made from both sides and have gone through the impugned Order. The appellant firm has not disputed the issue on merits, as the same is already settled against them by the Apex Court decision referred supra. The demand has been challenged on the ground of limitation. The appellants main contention is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earances inasmuch as there was no stay of operation of the same by any higher authority. In the alternative, the appellants could have approached their jurisdictional Central Excise Authority with a request either for provisional assessment or for the payment of duty under protest. On the contrary, they kept on paying duty only on the fabrication charges without including the value of the free supply material. This reflects upon the attitude of the appellants that they had not acted with clean hands and that can be inferred from the factum that the Department was aware about the payment of duty on fabrication charges only during that period, when it had issued a show cause notice in the year, 1987. That the appellants continued to pay duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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