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TMI Blog2005 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of different petroleum products classifiable under Chapter 27 of the schedule to the Central Excise Tariff Act, 1985. They import crude oil and refine the same into their final products and their final manufactured products are cleared under the Central Excise invoices issued by the Haldia Marketing Division as per their internal arrangement. The refinery wing of the appellant cleared motor spirit, high speed diesel etc. in tank wagon and realized siding/shunting charges from its buyers at specified rates applicable at the production point. However, the said siding/shunting charges were not included in the assessable value of the cleared products for the determination of Central Excise duty during 1-4-1994 to 30-6-1996. In addition t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -10-2001 for the period from April 1994 to June 1996 i.e. the entire period was beyond the 5 years from the date of issuance of the show cause notice. He submitted that when this fact was pointed out to the Commissioner, he has recorded that in the year 1999 Superintendent had written a letter to the Appellant asking them to give details of the free distribution zone (FDZ) charges being collected from their customers and as such the said letter is to be taken as the relevant date. Mr. Bagaria has drawn our attention to the Hon'ble Supreme Court decision in the case of Metal Forgings & Anr. v. UOI & Ors. reported in 2002 (146) E.L.T. 241 (S.C.) = 2002 (53) RLT 507 wherein the Apex Court has observed that the law requires issuance of show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disputed demand covered Annexure "A" to the show cause notice involved in this appeal was totally time barred as having been issued after expiry of 5 years. The second part of the disputed demand covered by Annexure "B" to the show cause notice involved in this appeal was time barred in so far as it related to the period prior to 10-10-1996 as having been issued after 5 years. 7. In respect of the second part covered by Annexure "B" to the show cause notice dated 16-10-2001 involved in appeal No. 835/2002, the Sr. Advocate submitted that there was no scope to invoke longer period of limitation of 5 years. Even in respect of the said second part of the show cause notice the demand was totally time barred as it was issued after expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng but cost of transportation on equalized basis and were not liable to be included in the assessable value. The Revenue has not disclosed any intention to evade Central Excise duty. The Sr. Advocate further submits that the Hon'ble Supreme Court has held in a number of judgments that in order to invoke longer period of limitation of 5 years, "the assessee must be guilty of withholding information deliberately with intent to evade payment of duty" and that in his case longer period cannot be invoked at all. In support of his contention he puts reliance on the following decisions of the Hon'ble Apex Court :- (a) Baidyanath Ayurved Bhavan Ltd. v. Commissioner of Central Excise - 2004 (165) E.L.T. 494 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Rubber Factory Ltd. - 1995 (77) E.L.T. 433-Supreme Court. (b) Baroda Electric Meters Ltd. v. CCE - 1997 (94) E.L.T. 13-Supreme Court. (c) Birla Corporation v. CCE [2001 (132) E.L.T. 484 (Tri.) = 2001 (45) RLT 448-CEGAT-Kolkata.] 9. He further submits that in a similar case relating to the FDZ charges the Commissioner of Central Excise Ludhiana has dropped the show cause notice by his order dated 10-12-2003. In view of above, he submits that the appeals filed by the Appellants kindly be allowed. 10. We have heard Shri J.R. Madhiam, ld. JDR who reiterates the findings of the Commissioner. 11. After hearing both the sides, we find that show cause notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of Central Excise reported in 1989 (43) E.L.T. 195, the Apex Court has observed in para 8 as follows: - "Shri V. Lakshmikumaran, learned Counsel for the appellant drew our attention to the observations of this Court in Collector of Central Excise, Hyderabad v. M/s. Chemphar Drugs and Liniments, Hyderabad - 1989 (40) E.L.T. 276 (S.C.) = 1989 (2) SCC 127 where at 131 of the report this Court observed that in order to sustain an order of the Tribunal beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section (1) of Section 11-A of the Act, it had to be established that the duty of excise had not been levied or paid or short-levied or shortly-paid, or erroneously refunded by reasons of either fraud o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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