TMI Blog1999 (3) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... on the assessee to make proper and correct declaration and entries in the production register RG 1. Further finding was that it was not by inadvertence. There could be no other inference if it was not by inadvertence, then deliberate, then it is not in the realm of inaction of the assessee but with the objective of a gain, which in other words would be conscious withholding of the information. Thus unhesitantly we conclude, on the facts of this case, proviso to Section 11 would be applicable, hence, show cause notice is held to be within time. the Tribunal recorded the finding that once allegation was that stock was not pre-budget stock, the burden was on the assessee to prove this fact. This was not done. The Tribunal further recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, Madras-IV Division to show cause why the penalty should not be imposed upon them under Rule 9(2) and 173 of the Central Excise Rules, 1944 and why a duty of Rs. 1,01,915.84 paise should not be demanded under Rule 10 of the Central Excise Rules, 1944. 4.The notice indicated that the appellant company having sold the transformer oil under invoice Nos. 626 to 629, 630 and 634 for the period from 1-3-1978 to 7-3-1978 for which the gate passes had not been prepared and duty has not been debited in PIA, though it has been raised in the invoices. It further mentioned that the company consumed 131.323 K.L. of white oil in the manufacture of petroleum jelly I.P. grade falling under Tariff Item 68 during the said period, i.e., 1-3-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less there was wilful suppression of material fact which is not in the present case, by an assessee period of six months as provided, under proviso to Section 11A would not be applicable. The contention is that it is true that the clearance of these products has not been disclosed in the relevant monthly RT 12 register, but they were nevertheless covered by the appellant's challans and further, turn over (T.O.) of the sales. Invoices had been seen by the Excise Authorities, it could not be said that there was any wilful suppression of facts as to attract the extended period of limitation. 9.The contention for the revenue is that under the self removal procedure, the primary obligation of an assessee is to make proper declarations and entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Lubri-Chem Industries Ltd. v. Collector of Central Excise, Bombay [1994 (73) E.L.T. 257 (S.C.) = 1994 (2) Supp. III 258], this Court while interpreting proviso to Section 11A held that extension of limitation period beyond six months up to five years for making a demand for excise duty, there has to be conscious or deliberate withholding of information by assessee and mere inaction is not enough. The relevant portion relied is read as under : "........under the proviso to Section 11A of the Central Excises and Salt Act (earlier Rule 10 of the Rules made under the said Act), it has to be established that the excise duty had not been levied or paid or short levied or short-paid, or erroneously refunded by reasons of either fraud or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosing the particulars which was not done in the present case. The finding recorded in this case, especially in the background that this was a case of self removal procedure in which there is obligation cast on the assessee to make proper and correct declaration and entries in the production register RG 1. Further finding was that it was not by inadvertence. There could be no other inference if it was not by inadvertence, then deliberate, then it is not in the realm of inaction of the assessee but with the objective of a gain, which in other words would be conscious withholding of the information. Thus unhesitantly we conclude, on the facts of this case, proviso to Section 11 would be applicable, hence, show cause notice is held to be w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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