TMI Blog1995 (7) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... ary of Larsen Toubro. At that time Larsen Toubro were the sole selling agents in respect of goods manufactured by the petitioner-Company. On 1st October, 1975 pursuant to the amendment of Section 4 of the Central Excise Act, show-cause notice was given on December 20, 1977 by the Assistant Collector of Customs. By the said show-cause notice, the petitioners were asked to explain whether secondary packing price was included in the assessable value of the goods sold through Larsen Toubro. By an Order dated 2nd June, 1981, the Assistant Collector of Customs accepted the contention advanced on behalf of the petitioners herein that wooden boxes, which was a secondary packing, was used for the purposes of despatching of the goods to up-coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period June 1980 upto June 1984. After the issuance of the impugned Order the Department instituted Criminal proceedings. In the above circumstances, the Writ Petition No. 603 of 1987 has been filed by the petitioner-Company against the Order passed by the Collector under provisions of Section 11A(1) dated January 20, 1987. Petitioners have also filed Criminal Writ Petition No. 1169 of 1988 under Article 227 of the Constitution read with Section 482 of the Criminal Procedure Code to quash the proceedings vide Case No. 646 of 1987 in the Court of the Chief Metropolitan Magistrate, Bombay instituted by the Assistant Collector of Central Excise. 4.In the above circumstances, both the above Writ Petitions are heard together since they ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a larger period only in cases of fraud, collusion, wilful suppression of facts or wilful mis-statement. In the circumstances, it is contended that in the present case, the Department had no authority to commence proceedings, particularly when no case has been made out for fraud or collusion or wilful misstatement or wilful suppression of facts. Mr. Bhatt further contended that the impugned Order, therefore, passed by the Collector was without authority of law and consequently, the Criminal proceedings instituted by the Department were also liable to be quashed. 6.Mr. Mehta, learned counsel appearing on behalf of the Department contended that in the present case, petitioners' sole selling agents at the relevant time were Larsen Toubr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 721), the Supreme Court has laid down that when the law requires intention to evade payment of duty, mere failure to pay duty will not attract proviso to Section 11A(1) and that the Excise Authority can only proceed if it is shown that the assessee was aware of the duty being leviable and yet he deliberately avoided paying the same. It is the deliberate avoidance of payment which attracts proviso to Section 11A(1). In the present case, we have seen the entire Order passed by the Collector on January 20, 1987. There is nothing to indicate wilful mis-statement or deliberate evasion of duty. On the contrary, after the judgment of Bombay Tyres given by the Supreme Court in 1983, petitioners have included the secondary packaging charges in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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