TMI Blog1993 (9) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, inter alia, the cement division which comprises cement plants at Satna in M.P, Chittorgarh in Rajasthan and Durgapur in West Bengal. M/s. Satna Cement Works, Satna undertaking at Satna (M.P) had a single licence L-4 under the Act up to 31-12-1987. Petitioner No. 1 Birla Jute and Industries Ltd. had moved an application for grant of two separate licences L-4 in respect of both the units i.e. M/s. Satna Cement Works, Satna and M/s. Birla Vikas Cement, Satna. Separate Excise Licences in Form L-4 were obtained in respect of both the units on 1-1-1988 bearing No. 1/88/SCW/R1/Satna for Satna Cement Works and No. 2/88/BVC/R1/Satna for the unit called Birla Vikas Cement. Both the units had a common L-4 licence up to 31-12-1987 but from 1-1-1988 they have two separate L-4 licences. According to the petitioners up to 1-1-1988 both the units, petitioners' companies M/s. Satna Cement Works and M/s. Birla Vikas Cement, Satna had been shifting and storing with the full knowledge of the excise authorities, clinker produced in one unit in the other, due to paucity of space at any particular point of time. This shifting was with the full knowledge of the excise authorities and several letters w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily stock register of clinker. There is no account for receipt of cement clinker in the daily stock register used for manufacture of cement and manufactured cement thereof was removed without payment of the basic duty and special excise duty and without accounting for in the daily stock register of cement. The petitioners have failed to determine themselves the liabilities for duty due on aforesaid quantities of cement clinker and cement and cement removed which was done without payment of duty, and it was not included in the general ledger of stores in the declaration furnished under Rule 173G(5) of the Central Excise Rules, 1944, suppressed production of clinker and cement, made willfully false entries of production and removal of cement clinker and cement at their daily stock account register of the quantities of clinker and cement mentioned in the notice. That, M/s. Birla Jute Industries Ltd., Cement Division, Proprietor M/s. Satna Cement Works, Satna and M/s. Birla Vikas Cement, Satna had knowingly and deliberately by reason of collusion and willful misstatement and suppression of facts in regard to manufacture of cement clinker removed the aforesaid quantities of unaccounte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravention of provisions of the Central Excises and Salt Act, 1944 and rules made there under by the petitioners. 5. The counsel for the parties, at the time of hearing, cited various other decisions arising out of and considering the question of initiation of the proceedings under the different Acts, particularly under the Income-Tax Act, but in view of the direct decisions of the Supreme Court considering Section 11A of the Central Excises and Salt Act, 1944, which are referred hereinafter, we do not feel it necessary to consider those decisions. Section 11A is intended to relate back and covers a period of 5 years from the date, a jurisdiction under it is invoked and thereby covers a period up to 5 years preceding the date of issue of notice. Whether there had been non-disclosure of primary facts which caused escapement of duty is basically a question of fact. When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded the Central Excise Officer within six months from the relevant date may serve a notice on the person chargeable with duty which has not been levied or paid or which has been short levied or short paid or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement showing year wise production and clearance of clinkers and cement during the period April, 1987 to March, 1992. In this statement clinkers sent from Satna Cement Works to Birla Vikas Cement, in the year 1987-88 nil, in the year 1988-89 nil, in the year 1989-90 nil, in the year 1990-91 - 13545 MT and in the year 1991-92 -22956 M.T; whereas as per chart prepared on the basis of stores freight account (general ledger) clinker shifting and the bills of transporters given for transportation of the clinkers from Satna Cement Works to Birla Vikas Cement the clinker is shown to be transported in the year 1987-88, 1988-89 and 1989-90. As per counsel for the respondents those documents also show the excess quantity of clinkers transported in the year 1990-91 and 1991-92 than reflected in Annexure-E. Similarly, Annexure-E does not show transportation of clinkers from Birla Vikas Cement to Satna Cement Works in the year 1989, whereas the bill dated 21-12-1989 (Paper-Book Page 127), supplied to the petitioners with show cause notice of M/s. Daulat Construction Co. the clinker was transported from Biria Vikas Cement of Satna to Satna Cement Works on 11-12-1989 and 13-12-1989 for which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment as per railway receipt/excise gate-pass are accounted for as sweepage and not shown in excise records. If the private records not produced before the excise authority shows evasion of the excise duty or the facts and figures recorded therein do not reflect in the records produced before the excise authorities, excise authorities are perfectly justified and well within their limits to make investigations, enquiries thereof to find out whether there is deliberate evasion of the excise duty. Whether shifting of the clinkers from one plant to another when they have become separate units, holding separate L-4 licence, was done with the knowledge and with the consent of the excise authority for the purposes of storing only due to paucity of place or otherwise is a matter of investigation and consideration of all material, records and reply to show cause notice. We do not find ourselves in a position to record any finding thereof at this stage. The question of contravention of provisions of the Act or the rules framed there under or any other law can only be determined after assessment of entire evidence, material on record and, thereafter arriving at the factual conclusion on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Bombay - AIR 1989 SC 1218 = 1989 (40) E.L.T. 214 (SC), the appellant was issued a show cause notice, and after, appellant showed cause the Collector of Central Excise passed order against the appellant. Appeal was preferred before the Tribunal. The Tribunal partly allowed the appeal but held that the appellant was guilty of suppression and rejected the submission of the appellant that the show cause notice was barred by time. Appeal was filed before the Supreme Court and the Supreme Court while considering the question whether the claim for duty is only confined to the period of six months because there was no suppression of facts has held in para 10 that - "Therefore, we have to find out whether there was any fraud, collusion, willful mis-statement or suppression of facts for the Department to be justified to claim duty beyond a period of six months. This is a question of facts." Therefore, in this decision also the Apex Court has held that the question whether there was any fraud, collusion, willful mis-statement or suppression of facts is question of facts requires to be determined by the authorities. 10. M/s, Padmini Products v. Collector of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot be said that no prima facie case has been made out by the respondents for exercising the powers under proviso to Section 11A of the Central Excises and Salt Act, 1944, by the Collector of Central Excise. At this stage, it is neither advisable nor necessary for us to determine questions of facts which can only be determined and adjudicated after the reply is filed by the petitioners to the show cause notice dated 29-5-1992. The Court need not go into the details at this point of time of the proceedings, it is a job of the Collector of Central Excise. The Court has only to look into the facts to the extent, to satisfy itself, that there is material on record which requires investigation and initiation of proceeding is not merely to harass the petitioners. 13. For discussion aforesaid, this petition is dismissed with cost. Counsel's fee Rs. 2,500/- if certified. 14. The petitioners are directed to submit their reply to the show cause notice to the respondent No. 2 on a fresh date which will be given by the respondent No. 2 to the petitioners. [Order per : S.K. Jha, C.J.]. - I entirely concur in the judgment of my learned brother. I, however, in deference to the argument ..... X X X X Extracts X X X X X X X X Extracts X X X X
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