9911796707
TMI Blog1985 (5) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the appellant in respect of the, clearances of sugar effected during the period from 1-3-1983 to 26-4-1983. Originally, Notification No. 99/81-C.E., dated 3-4-1981 was in operation in respect of the basic excise duty and additional excise duty payable on levy and free sale sugar. This notification was later amended by Notification Nos. 28 and 29-C.E. of 1983 dated 1-3-1983 under which the rate of basic excise duty and additional excise duty payable on the clearances of levy sugar was fixed at ₹ 19/- per quintal. It should be noted in this context that the said two notifications, namely 28 and 29 of 1983 dated 1-3-1983 dealt only with the basic excise duty and additional excise duty on clearances of levy sugar and did not deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale sugar. The Department without adjusting the excess amount paid by the appellant rejected the appellant's plea after some correspondence and then issued a show cause notice dated 16-12-1983 under Section 11A of the Act. The contention of the appellant to the show cause notice was not accepted by the Department and ultimately the original order was confirmed under the impugned order out of which the present appeal arises. 2. The learned counsel for the appellant Shri Narasimhan contended that under the law, the Department cannot issue a notice of demand without assessment. The Show Cause Notice of the Department dated 16-12-1983 is clearly barred by limitation within the meaning of Section 11(A) of the Act. Having regard to the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in respect of the amount short levied by the department, there does not appear to be any controversy between the parties. In respect of the short levy, the fact remains that show cause notice was issued by the department for the first time only on 16-12-1983 in respect of the amount due from the appellant from 1-3-1983 to 26-4-1983. Section 11A of the Act is very clear and categorical that when any duty of excise has been short levied, the Central Excise Officer may within six months from the relevant date serve a notice on a person chargeable with the duty which has been short levied requiring him to show cause why he should not pay the amount specified in the notice. 'Relevant date' has also been defined as the date on which the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions did not at all have anything to do with the levy on free sale sugar. It should also be noted in this context that the monthly RT 12 returns for March and April 1983 filed by the appellant have been accepted and assessed by the authorities on 19-4-1983 and 12-5-1983 respectively. 5. The Department waking up to a situation of short levy for the first time chose to initiate action by means of notice of demand purporting to be under Rule 9(2) for the first time on 12-8-1983. It is common knowledge that a demand can be made only in pursuance of a valid order of assessment except in a situation where the party has clandestinely removed excisable goods without payment of excise duty in which case Rule 9(2) and procedure thereunder can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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