TMI Blog1985 (6) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... period. It was also alleged that the appellants suppressed information about the collection of handling charges of raw-materials. The show cause notice was issued under Rule 10(i)(c) of Central Excise Rules, 1944. After due process, the Asstt. Collector confirmed the demand for differential duty. 2. Aggrieved, the appellants filed an appeal before the Appellate Collector of Central Excise who passed the impugned order dated 14-7-80 holding that inclusion of handling charges in respect of raw-materials in the assessable value was according to law. He also upheld the demand under Rule 10(i)(c) for the period after 6-8-77 (when rule 10 was amended) and under Rule 9(1) and 9(2) for the period prior to that date. The appellants filed a revision application before the Govt. of India against this order. The revision application, on transfer to the Tribunal, is being treated as an appeal. 3. In the memorandum of appeal and before us the appellants pleaded-that their interest in the manufacture of wire rods was limited to conversion charges only as they work on job work basis. The handling charges for the materials are incurred by them on behalf of the customers and have no connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 5-8-76 was barred in any case. The existing period of limitation can be invoked only from 6-8-77. They further submitted that there was no question of clandestine removal of goods and therefore, the application of Rules 9(i) read with 9(2) ordered by the Appellate Collector is wrong in law. They also argued that the non-mention of debit notes in the price list filed by them was bona fide omission and submitted that the price was to be approved only after enquiries and verification as provided by law. They cited, in this regard, 1983 E.L.T. 1927 (Sriram Pistons and Rings Ltd., Ghaziabad v. Collector of C.E., Meerut). 7. The learned representative for the respondent, Shri Mahesh Kumar, relied on the judgment in respect of M/s. Pyrites Phosphaets Chemicals Ltd. v. C.C.E. Madras [reported in 1984 (18) E.L.T. 585 = 1984 ECR 2025] and said that this judgment covers the present matter on all fours. He further argued that transportation charges for raw-materials was a pre-manufacturing cost and not a post-manufacturing expense. He emphasised that the appellants did not sell their product and could not be called either manufacturer or producer of aluminium according to the Aluminiu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Sec. 4 was in force, the value had to be fixed under Sec. 4 (a) on the basis of the price at which goods of the like kind and quality were capable of being sold. A further argument of the appellants was that for the period after 1-10-75 assessable value had to be fixed under proviso (i) to Sec. 4 (i) (a) or 4(1)(b) of the Act. This argument cannot be accepted for the reason that the facts of the present case are that the appellants charged the amounts said to represent transportation charges for raw-materials over and above the prices declared by them in the price list. If prior to 30-9-75 the appellants felt that they were entitled to assessment at a price on the basis of like goods, the right thing to do was to file a price list accordingly and get it approved by the department. Filing a price list and then issuing debit notes for collecting amounts not mentioned in such price list was not a legal way. Similarly, proviso (ii) to Sec. 4(1) (a) (as revised on 1-10-75) contemplates assessable value being equal to the statutorily fixed price where goods are sold by the assessee in the case of wholesale trade at the price fixed under law. It is an accepted position that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid holding that the Act as amended was not to be given greater retrospectivity than was expressly mentioned. Sub-clause (iii) of Sec. 34 of Income-tax was amended by Sec. 18 of the Finance Act, 1956 to provide a period of limitation of two years instead of one year earlier. As recorded in the judgment, Sec. 18 of the Finance Act (amending Sec. 43 of the Income Tax Act) was not given retrospective operation beyond April 1, 1956. Therefore, the retrospectivity of the amended Section was clearly defined in the statute itself. In respect of proviso to Rule 10, the situation is different. The retrospectivity built into the Rule was up to five years in cases of misstatement, suppression of facts, etc. This was a new cause of action which was not present in the earlier law. Therefore, in our opinion, the judgment cited by the learned consultant for the appellants is not applicable to the facts of the present case in view of the nature of the proviso to Rule 10 which is entirely different from the amendment made to the Income-tax Act, and in view of the retrospective nature up to five years built into the amendment to Rule 10 which became effective from 7th August, 1977. For these reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f information and we have already discussed it in the previous para. The main show cause notice itself cited Rule 10(1)(i) of the Central Excise Rules. Therefore, it cannot be said that in this instance there was no allegation of suppression. A list of 916 debit notes was also enclosed to the show cause notice. Therefore, the case law cited by the appellants does not help them as the facts in this case are different. The appellants further cited, in support of their argument that only normal limitation could apply, the judgment of this Tribunal in the matter of Sriram Pistons and Rings Ltd., Ghaziabad v. Collector of Central Excise, Meerut (1983 E.L.T. 1927). The argument was that there was a duty cast on the officer to verify what was said in the price list and omission to perform this duty protected the appellants. This is not a valid one. The omission by the officer to make such a verification to detect the debit notes cannot have the effect of making null and void the action against the appellants after the discovery of such undisclosed debit notes. The cited judgment in respect of Sriram Pistons and Rings Ltd., does not cover the facts of this case, as allegations of suppressi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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