TMI Blog2013 (8) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... ve details for giving effective reply of the facts, which the petitioner treats as jurisdictional facts and on which the exemption is claimed - Writ petition in the absence of the petitioner's cooperation in leading evidence on which he was claiming exemption, is not maintainable. Limitation – Held that:- Party have willingly, suppressed all the facts and mis-interpreted the provisions of exemption in their favour, to pay less duty on the clearance of their products - Party have willfully suppressed the material facts of non-mentioning the weight on every packet which they were required to print as per the provisions of S.W.M.P.C. Rules/L.M.P.C. Rules, in case they want to seek exemption from printing M.R.P. and accordingly they have paid less amount of duty hence the provisions of Section 11A, as amended, for extended period, are clearly invokable in this case and accordingly the provisions of Section 11AC are also invokable – Decided against the Assessee. - Writ Tax No. - 519 of 2013 - - - Dated:- 13-5-2013 - Hon'ble Sunil Ambwani And Hon'ble Bharat Bhushan,JJ. For the Petitioner : Nishant Mishra,V.K. Upadhyay For the Respondent : Vinod Kant Srivastava ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rakashan Ltd. v. Deputy Commissioner of Income Tax (TDS), (2012) 345 ITR 288 (All) in a matters arising from income tax in support of his submission. Shri V.K. Upadhyay submits that exemption given under Rule 26 of the LMPC Rules (earlier Rule 34 of SWMPC Rules) to the manufacturers for sale of goods in net weight of less than ten grams or 10 milliliter are exempted from declaring maximum retail price. The petitioner is entitled to such exemption as it is whole seller and in the circumstances in view of the law laid down in Jayanti Food Processing (P) Ltd. (Supra) the petitioner was not required to disclose MRP, which is the foundation of the demand-cum-show cause notice. He relies on paragraph 5 of the judgment, which is quoted as below:- "5. When we read these Rules along with provisions of Section 4A of the Act, it would be clear that where there is a general exemption like Section 34 under the SWM (PC) Rules such goods and/or packages of such goods shall not be covered by Section 4A (1) and (2) of the Act. However, all such packages which are covered under Chapter II, more particularly under Rule 6(1)(f), Rules 15, 16 and 17, would be governed under Section 4A as such packa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perusal of invoices, issued by the party to the whole sale traders reflects that they do not show any weight of goods on them, and also the samples of packets/packing material/packaging material tendered by the party during the visit of officers on 21.9.2011 do not show any mention of weight of per dibbi or total dibbies in small packets and its total weight, this itself made the situation clear that the party as stated above, never mentioned the weight in their packets since 24.8.2006. 21. And whereas it appears that to avail the exemption, as provided in any rule/notification, the mandatory provisions as laid down in the rules/notifications, are to be strictly followed. In the instant case, the party has claimed exemption as per provisions of Rule 26 of LMPC Rules, stating that their goods are of less than 10 grms. Weight and they are selling, such goods, only, which are less than 10 grms. In weight as is claimed by them time to time. But in view of resonance of provisions of Rule ibid they were required to print the weight of finished goods on the each packing/packet of such goods, to be said, or at least goods content less than 10 grms. In the packets to be sold. In absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weight and that their goods are covered by the notification issued in accordance to LM Act/LMPC Rules which was obligatory on them, as they claimed to sell their goods on the basis of weight only. Hence it clearly appears that in absence of weight of contents in packet, the duty appears to be payable on their goods on the basis of MRP (Which is given in each packets) as such provisions of section 4 A are clearly applicable on the clearance of their goods. 27. And whereas, it also appears that during investigation/enquiry proceedings the party did not co-operate and also not submitted any record as required. They only submitted that they are exempted from paying duty under Section 4-A as per provisions of SWMPC Rules, but this submission does not amount to discharge of the onus of proof at the party's end. It is crystal clear that the party has manufactured and sold the goods in question, therefore, it was only the party who were having proper knowledge as to how and in what manner the goods were packed for sale. During the enquiry proceedings, despite the fact that they were given opportunity to produce the evidence in their support, they did not lead any evidence to indicate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly, it appears that the exemption as per SWMPC Rules appears not available to them. 29. And whereas from the foregoing facts it is evident that M/s Hiran Tobacco Factory have indulged in malpractices of not following the provisions contained in Acts/ Rules ibid with an intend to evade the payment of duty leviable thereon and deprived the Government of its legitimate revenue and thus have contravened the provisions of Central Excise Act 1944 and rules framed thereunder as under:- (a) Section 4 A of Act ibid read with provisions of SWMPC Rules /LMPC Rules in as much as they have not assessed their goods on the value, with reference to retail sale price; (b) Rule 6 read with Rule 8 of Central Excise Rules 2002, in as much as they have not property assessed the duty payable on their goods cleared during the period in question and not paid the due duty accordingly. 30. And whereas, it also appears that they party vide their letter dated 24.8.2006 have intimated that they will make clearance under Section 4 of the Act ibid claiming therewith that their packing is below 10 grms and therefore they are exempted from standard Weight and Measurement Act ibid but, they faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly the provisions of Section 11AC are also invokable." Prima facie we do not find that the adjudicating authority has either given notice with premeditated mind or has recorded any findings, which may prejudice the petitioner at this stage. The petitioner was given several opportunities to appear and give reply to the notice and to lead evidence in support of his contentions. The Adjudicating Authority has observed that the petitioner failed to reply to the notice and did not attend hearing on 22.9.2011 and on 28.2.2012 for the reasons such as ill health and lower backache. The petitioner was again required to appear along with documents, to which he only gave written replies, and chose to absent himself from the proceedings. The Adjudicating Officer has observed in his demand-cum-show cause notice that to avail exemptions as provided in any rule/ notification, the mandatory provisions as laid down in the rules/ notifications is to be followed. In the present case the petitioner claims as per provisions of Rule 26 of LMPC Rules stating that their goods are of less than 10 grams weight. The provisions of Rule required it to print the weight of finished goods on each ..... X X X X Extracts X X X X X X X X Extracts X X X X
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