9911796707
TMI Blog2007 (10) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... y. However, with introduction of Chapter Note (3) to Chapter 73 in the Budget of 1997, drawing and re-drawing of pipes and tubes was held to be amounting to manufacturing activity. As a result, the appellant became liable to pay the duty. 3. The appellant filed the declaration from time to time, showing the value of clearance as that of job charges only. In as much as the job charges were less than Rs. 50 lakhs, they claimed the benefit of various small scale exemption notifications. 4. The demand in the present case has been raised against them for the period 1997-98 to 2000-01 by way of issuance of show cause notice dated 5-3-2002 on the ground that while computing the total value of clearance, the value of the raw material sent by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise officers to include the value of the raw material. Even after filing of declaration, they were never questioned by the range officer as to whether the value as reflected by them is inclusive or exclusive of value of the raw material. By drawing our attention to the various decisions, learned Advocate submits that "intent to evade duty" being one of the essential ingredients for invocation of proviso to Section 11A, has to be proved by the Revenue and mere failure on the part of the appellant to disclose the actual value of the clearance, cannot be held to be suppression on their part or mis-statement with an intent to evade payment of duty. 6. Learned SDR appearing for the Revenue, draws our attention to the reasonings adopted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eflected under the bona fide belief and there was no intention on their part to evade the duty in as much as they would have been reimbursed with the duty by the principal manufacturer. We find, in an identical situation, Tribunal, in case of CCE, Hyderabad v. Decent Enterprises as reported in 2002 (147) E.L.T. 520 (Tri-Chennai), after taking note of the various decisions of Hon'ble Supreme Court has observed that in order to extend the larger period, it is not enough that there was failure on the assessee's part in performing the act, but there has to be intention to evade duty and there has to be something more positive than mere non-action or failure on the part of the manufacturer or producer by deliberate withholding of information whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have been with intention to evade payment of duty. Both must concur to enable the Excise Officer to proceed under this proviso and invoke the exceptional power. Since the proviso extends the period of limitation from six months to five years it has to be construed strictly. The initial burden is on the Department to prove that the situations visualised by the proviso existed. But once the Department is able to bring on record material to show that the appellant was guilty of any of those situations which are visualised by the Section, the burden shifts and then applicability of the proviso has to be construed liberally. Similarly, in case of Cadila Laboratories (P) Ltd. v. CCE, Vadodara - 2003 (152) E.L.T. 262 (S.C.), it was held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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