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TMI Blog2002 (9) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... ol is obtained as a by-product which is retained by the job worker. For this process, the job worker is paid job charges @ Rs. 6000.00 per M.T. of PET chips by FIL. (ii) In the second process, PTA and MEG + catalyst are supplied by FIL as raw material. No by product is recovered and the job worker is paid job charges @ Rs. 10000.00 PMT of PET chips by FIL. The Central Excise authorities on the scrutiny of their manufacturing processes came to learn that in the first process of manufacture, a by product Methanol is obtained which is retained by the party free of cost. This was viewed to be an additional consideration. Therefore, the value of the PET chips for the purpose of assessment was required to be loaded by an element of Rs. 4000.00 PMT for this additional consideration as per Section 4(2) of the Central Excise Act, 1944, in terms of which where the duty is payable with reference to value, such value shall be deemed to be the normal price thereof at which such goods are sold by the assessee to a buyer in the course of whole sale trade and that where price charged is not the sole consideration, the assessable value of goods shall be based on the aggregate of such prices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proximately 39 months from the date of their knowledge whereas the normal limitation period available to the department is only six months from the date of knowledge, therefore, the demand is time-barred. As regards the merits of their case, the noticee party submitted that the allegation of lowering the job charges by Rs. 4000.00 per MT on account of additional consideration through retention of Methanol in the show-cause notice is not correct and the provisions of Section 4(2) of the Central Excise Act, 1944 are not applicable. It is submitted that nothing more was paid by the supplier of the raw material to them over and above the billed amount; that the job charges were fixed in advance after considering all the factors in totality before taking up the manufacturing activity on job work; that job charges were determined as per job work undertaken; that job charges @ Rs. 6 per Kg. was fixed for the job work to be undertaken through DMT route and another job charges @ Rs. 10.00 per Kg. was fixed for the manufacture through PTA route; that comparison of two different types of job works is unwarranted because each job work is independent of each other and the demand of duty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is contended that in the earlier show-cause notice, there was no allegation of any suppression, mis-statement or fraud etc. and those proceedings culminated in the Assistant Commissioner of Central Excise, Gwalior Division passing an order dated 25-9-98 in which he confirmed the duty of Rs. 25,44,192/- under Section 11A and further imposed on them a penalty of Rs. 2,60,000/- under Rule 173Q. The appellants have filed copies of this show-cause notice and the order of the Assistant Commissioner. The ld. Counsel for the appellant is contending that the findings of the Commissioner in his impugned order that since the goods were being manufactured on job work basis and no sale was involved; that they were required to file declaration in form Annexure-2C as provided under Rule 173C; that they had removed the goods without filing such declaration and that there is a suppression of facts, is not tenable. The appellants are also challenging the findings of the Commissioner that at no point of time they had declared about retention of Methanol which was a gain to them over and above the job charges; that they had consciously suppressed this fact and continued to suppress the same wilfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Makers with the clear intention that if a person has not paid the duty, which is due to the Government under law, on account of fraud, suppression, wilful mis-statement or contravention of Act or Rules with an intent to evade payment of duty, the Department can deprive him of his illegal benefit and/or demand the duty due to the Government within a period of five years from the relevant date. This period of five years is not curtailed merely because the Department has come to know about the fraud, suppression, etc. committed by the assessee. "Casus/Omisus" is well settled rule of interpretation." 5. We have considered the submissions made before us by both the sides. As already stated, the facts of the case are not in dispute before us. The appellants admittedly are manufacturing PET chips from the raw material viz. DMT, MEG and catalyst supplied to them by their sister concern M/s. Flex Industries Ltd. During the process of manufacture, the product Methanol is recovered as by-product which is retained by the appellants and sold in the market. For this manufacturing process, they are paid job charges @ Rs. 6000.00 PMT as against the other process of manufacture involving raw ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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