TMI Blog1978 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... late to goods which have been notified by the Central Government in terms of Section 173A of the Act. Admittedly tread rubber is one of the materials which comes within the ambit of Chapter VIIA. 2. The petitioner had filed his returns for the relevant period viz. 4-7-1963 to 21-4-1971. The tax on the basis of self-assessment had been paid by the petitioner in the personal ledger account mentioned under Section 173-G. When the goods leave the petitioner's premises the duty payable in respect of such goods on the basis of self-assessment is generally paid into that account. The goods sold by the petitioner to their customers are sometimes returned to the petitioner in the form of cuttings which are later reprocessed and delivered back to those customers. According to the petitioner the cuttings which are returned to the petitioner, for reprocessing are not excisable goods as they had already been subjected to a levy. Ext. P1 demand notice dated 19-6-1973 was served on the petitioner by the Asstt. Collector of Customs (1st respondent here) calling upon them to show cause why they should not be proceeded against in terms of Rule 9 (2). The petitioner contended before the officer th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods shall be removed from any place where they are produced, cared or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export, or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid in such place and in such manner as is prescribed in these Rules or as the Collector may require and except on presentation of an application in the proper form and on obtaining the permission of the proper officer on the form : Provided that such goods may be deposited without payment of duty in a store-room or other place of storage approved by the Collector under Rule 27 or Rule 47 or in a warehouse appointed or licensed under Rule 140 or may be exported under bond as provided in Rule 13 : Provided further that such goods may be removed on part-payment of duty leviable thereon if the Central Government by notification in the Official Gazette, allow the goods to be so removed under rule 49: Provided also that the Collector may, if he thinks fit instead of requiring payment of duty in respect of each separate consignment of goods removed from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund, serve a notice on the person from whom such deficiency in duty or charges is or are recoverable requiring him to show cause to the Assistant Collector of Central Excise why he should not pay the amount specified in the notice. (2) The Assistant Collector of Central Excise, after considering the representation, if any, made by the person on whom notice is served under sub-rule (1), shall determine the amount of duty or charges due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined within ten days from the date on which he is required to pay such amount or within such extended period as the Assistant Collector of Central Excise, may, in any particular case allow." Rule 10 relates to short-levy and it provides for payment of the deficient duty. Power under Rule 10 can be exercised only within the time stipulated therein. This is in contrast with Rule 9 which provides for no such limitation. Rule 10 is made applicable even in respect of goods coming under Chapter VII-A of the Rules. Rule 173 J says : "The provisions of Rules 10 and 11 shall apply to the assessee as if for the expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not possible to investigate these difficult facts. In the normal course the assessee has a right to be heard as to these facts and applicability of the provisions of law invoked. It is however contended on behalf of the respondents that petitioner's appeal before the Collector of Customs was filed out of time. I shall therefore address myself to that question. It is stated in the petitioner's affidavit as well as in their revision petition filed before the 3rd respondent that the appeal was sent to the 2nd respondent, albeit in the wrong address, by registered post from Changanacherry on 2-4-1974. The letter was, unfortunately for the petitioner, addressed through inadvertence to the Appellate Collector of Customs, Cochin. It is stated by the petitioner that it was transmitted by that office to the correct address of the 2nd respondent at Madras. Unfortunately again for the petitioner on account of the delay involved in the transmission, the appeal was received after the date on which the period of limitation under Section 35 of the Act had expired. It is not controverted in the affidavit filed on behalf of the respondents that the appeal was transmitted as stated by the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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