TMI Blog2016 (5) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... price lists. Therefore it was only normal period of one year available to the department to re-open the approval of price list which the department failed to do so and therefore entire demand raised for the extended period is time barred. Member (T) held that in absence of evidence to substantiate the claim that the prices are approved under DPCO, the assertion made on the price list submitted to revenue under Central Excise Law amounts to mis-declaration with intent to fraudulently avail the exemption. Therefore, the extended period of limitation has been rightly invoked. Difference of opinion - The Registry is directed to put up the file before the Hon'ble President to resolve the issue, by reference to a third Member. - E/462/05- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e footnote of the price list that the medicines figured in DPCO. Thus the appellant have not complied with the prescribed condition of the Notification No. 245/83, therefore not eligible for this discount. In the adjudication order, the Addl. Commissioner accepting with the allegations, denied the discount and confirmed the consequential duty demand of ₹ 49,81,952/- and also imposed the penalty of equal amount without quoting any statuary provision for penalty. Aggrieved by the said Order-in-Original dated 30-08-2004, the appellant filed an appeal before the Commissioner (Appeals), who rejected the appeal vide the impugned order, hence the appellant is before us. 3. Shri M.P. Baxi, Ld. Counsel for the appellant submits that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri H.M. Dixit, Ld. Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that as per the Notification No. 245/83, discount of 15% can only be allowed if the MRP is specified in the price list referred to in the DPCO 1987. The appellant have not shown at any stage that the maximum retail price declared in the price list submitted to the department is specified in the price list referred to in the DPCO 1987. Therefore, they violated vital condition of the notification. Hence the discount was rightly denied by the lower authority. 5. We have carefully considered the submissions made by both the sides. 6. We find that it is admitted fact that the appellant could not submit pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only placed reliance on the judgment of Hon ble Supreme Court in the case of Easland Combines (supra). On the careful reading of judgment, we find that what is settled in the said judgment is that department is empowered to re-open the approval of classification list or exemption of price list, but at the same time Hon'ble Apex Court also held that it can be done only within one year if there is no willful misstatement or suppression of fact. We find that in the present case, there is no suppression of fact, therefore the Hon'ble Apex Court judgment is rather supporting the case of the appellant. 6.2 In view of our above discussion, we find that the demand is not sustainable being time barred. The impugned order is se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, the matter was fresh, about two to five year old, therefore the claim that they are not able to produce the said Price List as the matter is old is without any basis. While there is no condition that the DPCO price list is to be submitted along with the price list under Central Excise Rules, however it is responsibility of the appellants to make correct claim in the Price List. If they have claimed that the prices are covered by the DPCO 1987 then they should be able to give evidence. The Section 106 of the Evidence Act states as follows 106. Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Law, had claimed that the price of their products are covered by DPCO 1987. Hon Supreme Court in the case of AAFLOAT TEXTILES (I) P. LTD. (2009 (235) E.L.T. 587 (S.C.)) observed as follows 17. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages 712 713, No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity, (page 722). In the instant case it appears a wrong claim has been made with intent to avail undue benefit and it amounts to fraud. In such a situation approval of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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