TMI Blog1997 (9) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Sheet as on 31-3-1989, the stock-balance as reflected in the RG-23A Part-I being the inputs to the tune of 502.53 MTs., was found short in the RG-23A Part-II register. 2. Arguing on behalf of the appellants, learned Advocate, Shri N. Mookherjee for the appellants submitted that the appellants are engaged in the manufacture of Refractory Fire Bricks for which they claimed the Modvat Credit on the various inputs including Abrasive Grains after filing a due declaration under the provisions of Rule 57G and after observing the requisite formalities as required under the Modvat provisions of law. Proper accounts of receipt of input materials in the form of RG-23A Part-II and of Credit taken in the form of RG-23A Part-II Account, were bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued another show cause notice dated 7-5-1993 by the Assistant Commissioner in respect of the same allegations levelled in the earlier show cause notice, alleging a shortage of Abrasive Grains to the tune of 424.558 M.Ts. and a demand of duty of Rs. 7,87,035.00 was raised under the provisions of Rule 57-I (2) of the Central Excise Rules, 1944. 4. Arguing on the point of limitation, Shri Mookherjee, learned Advocate submitted that earlier a show cause notice was issued by the Superintendent which remained unadjudicated and as such, was presumed to have been dropped by the authorities below. Raising of another show cause notice after a gap of three years was not warranted. He, further, submitted that the notice in question did not alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the case-law relied upon by the learned Advocate in support of the plea on limitation was not relevant inasmuch as the same dealt with the provisions of Rule 57-I(1) whereas in the instant case, the provisions of Rule 57-I(2) had been invoked. He also submitted that the arena of both these two sub-rules of Rule 57-I was different. Sub-rule (2) was applicable in cases where the inputs in respect of which the Credit had been taken were not fully accounted for as having been disposed of in the manner specified in the Section(s). He further submitted that whereas Rule 57-I(1) had been amended and the period of six months or five years as the case may be, had been prescribed therein, Sub-Rule (2) of Rule 57-I had remained unamended withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice by the Assistant Commissioner concerned in the year 1993, being a proper officer, did not vitiate the demand made therein. As regards the plea taken by the learned Counsel that the extended period of five years for raising the demand, would not apply inasmuch as the Department was in the knowledge of the fact of issuance of the first show cause notice in the year, 1990, I find, as rightly pointed out by the learned JDR, that the provisions of Rule 57-I(2) do not prescribe any time-limit for issuance of the show cause notice. Therefore, the said Sub-Rule (2) of Rule 57-I is pari materia to Rule 223A of the Central Excise Rules, 1944, wherein it has been held by several decisions of the Tribunal that limitation under the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question which was raised under the provisions of Rule 57-I (2) was not barred by limitation. 9. As regards the merits of the case, the allegations have been made against the appellants on the basis of the discrepancies found in respect of the balance reflected in the Balance Sheet and the balance as reflected in the Modvat records. The appellants have not denied the fact of discrepancies in the two records. Shri Mookherjee has argued that there is no evidence produced by the appellants to show that they had cleared the inputs as such to any other outside party. I find that the Department by pointing out to the discrepancies in the Balance Sheet and in the RG-23A Part-I record has discharged its initial onus to prove the allegation. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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