1990 (9) TMI 90 - HC - Central Excise

Summary

Issues:
1. Contravention of Central Excise Tariff and imposition of duty and penalty.
2. Appeal before the Central Board of Excise and Custom.
3. Revision petition transferred to the Custom, Excise and Gold (Control) Appellate Tribunal.
4. Interpretation of ambiguous description leading to suppression under Rule 10.
5. Application of extended period of limitation under Rule 9(2) read with Rule 10.
6. Self Removal Procedure and compliance with statutory requirements.
7. Application of Rule 9(2) and condition precedent for conscious evasion of duty.

Analysis:

1. The petitioners were found to have cleared iron bars without paying the appropriate duty as per the Central Excise Tariff. The Collector of Central Excise imposed duty and a penalty under relevant rules due to willful mis-statement and suppression of facts, within the prescribed period of limitation.

2. The Central Board of Excise and Custom confirmed the duty demand but waived the penalty, citing lack of evidence for deliberate mis-statement. A revision petition was filed and transferred to the Appellate Tribunal.

3. The Appellate Tribunal upheld the duty demand, emphasizing the ambiguity in the description used by the petitioners, which amounted to suppression under Rule 10. The Tribunal supported the waiver of penalty by the Board based on the justification of suppression.

4. The Tribunal referred to a Supreme Court decision regarding the application of the extended period of limitation, highlighting the need for evidence of willful mis-statement or suppression to invoke the extended period. The petitioners' interpretation of the exemption notifications was considered a case of misinterpretation rather than willful suppression.

5. The petitioners operated under the Self Removal Procedure, maintaining proper records and filing necessary documents. The Tribunal noted that the evidence did not clearly establish deliberate suppression or mis-statement by the petitioners, as verified by the proper officer until the show cause notice was issued.

6. Rule 9(2) was deemed a penal provision applicable only in cases of conscious duty evasion. The Tribunal cited a Gujarat High Court case to emphasize that clandestine removal to evade duty is a prerequisite for the application of Rule 9(2), which was found lacking in the present case.

7. The Tribunal concluded that the petitioners, believing in the duty exemption, cleared the iron bars without payment, and the extended period of limitation under Rule 9(2) could not be invoked. The Tribunal quashed the earlier order and left the parties to bear their own costs.