TMI Blog2008 (3) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... shok Bhan, J.]-1. These two appeals are directed against the order of Customs Excise and Gold (Control) Appellate Tribunal, Delhi in appeal No. E/303/2001-C (Final OrderNo 14/02-C) dated 25.1.2002. Civil Appeal No. 4055 of 2002 has been filed by the Revenue whereas Civil Appeal No. 5608 of 2002 has been filed by the assessee. 2. The Assessee is engaged in the manufacture of photographic chemicals. During the period from March, 1988 to February, 1992 assessee cleared its products under the brand name "Tetenal" without payment of duty, claiming the benefit of exemption under Notification No. 175/86-CE dated 1.3.86. From the result of investigation conducted by the officers of Central Excise, it was found that the brand name "Teten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 (for short "the Act") and also imposed a penalty of Rs.3 lakhs under Rule 173Q of the Central Excise Rules, 1944 (for short "the Rules"). 5. The assessee being aggrieved filed an appeal against the aforesaid order before the Tribunal. Apart from raising the issue of applicability of the Notification and limitation, the assessee further contended that the selling price of the goods was the cum-duty price and they were entitled to deduct the duty element from the sale price for the purpose of determination of assessable value of the goods in terms of Section 4(4) (d) (ii) of the Act. Tribunal by its impugned order held that the demand of duty is not barred by time. That the extended period of limitation was invocable in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No.175/86-CE. The period of dispute was from February, 1988 to March, 1992 and the show cause notice was issued on 26.6.1992, hence the demand prior to 24.12.1992 was clearly barred by time. 7. As against this, Mr. I. Venkatanarayana, learned senior counsel appearing for the Revenue submitted that the assessee was fully aware of the fact that during the material period, the brand name "Tetenal" did not belong to them but belonged to their German collaborator. The assessee suppressed this material fact before the department with intent to evade payment of duty on the branded goods by wrongly availing the benefit of Notification No. 176/86-CE. It was contended that there was no material on record to support the plea of bona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly been giving declaration in various classification lists that the brand name "Tetenal" was owned by them. 10. Proviso to Section 11A (1) of the Act reads: "Section 11A - Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are fully satisfied. 12. Para 7 of the Notification No. 175/86-CE stipulates that the benefit of exemption will not be available to the goods on which the brand name of another manufacturer is affixed and the said manufacturer is not entitled to the small scale exemption, so that the benefit of small scale exemption should not be misused by manufacturers manufacturing goods for different persons. Admittedly the German collaborator was not entitled to avail the SSI exemption. We presume that the assessee while filing the classification list would be aware of Clause 7 of the Notification. In spite of clause 7 in the Notification, the assessee made a mis-statement in the classification list for claiming benefit of the exemption Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise and Ors v. Bata India Ltd., 1996 (4) SCC 563, and it is thus clear that when cum-duty price is charged, then in arriving at the excisable value of the goods the element of duty which is payable has to be excluded. The Tribunal has, therefore, rightly proceeded on the basis that the amount realised by the respondent from the sale of scrap has to be regarded as a normal wholesale price and in determining the value on which excise duty is payable the element of excise duty which must be regarded as having been incorporated in the sale price, must be excluded. There is nothing to show that once the demand was raised by the Department, the respondent sought to recover the same from the purchaser of scrap. The facts indicate that af ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
