1986 (2) TMI 178 - AT - Central Excise

Summary

Issues Involved: Limitation, Exemption Notification 119/75, Exemption Notification 120/75, Natural Justice, Penalty

Issue-Wise Detailed Analysis:

1. Limitation:

The show cause notice dated 5-6-1980 covered the period from 1-3-1975 to 31-12-1978, alleging that the appellants failed to include the value of the raw materials in the excise duty calculations. The appellants argued that Rule 173PP, which required duty assessment at the close of the accounting year, was not in force at the time of the show cause notice. The Tribunal found that the appellants had informed the authorities about the nature of their work and that there was no clandestine removal or mis-declaration. The classification list was approved by the authorities, and there was no deliberate secrecy or deception. Thus, the demand was barred by time.

2. Exemption Notification 119/75:

The appellants claimed entitlement to the benefit of Notification 119/75 for job work. The Tribunal noted that the appellants met the requirements of the notification, which included returning the article after the manufacturing process and charging only for the job work done. The Tribunal held that the identity of the articles remained the same after the manufacturing process, and the appellants were entitled to the benefit of Notification 119/75.

3. Exemption Notification 120/75:

The appellants argued that they paid duty on the invoice value, excluding the value of materials supplied by the railways free of cost. The Tribunal found that the contracts referred to in the invoices indicated that the price shown did not include the value of the materials supplied by the railways. The Tribunal held that the value of the materials supplied by the railways could not be included in the assessable value, as the invoice price reflected the actual sale price paid by the railways.

4. Natural Justice:

The appellants argued that the principles of natural justice were violated as the Collector referred to certain decisions of the Government of India without mentioning the citation. The Tribunal found that the grounds of appeal did not set out the violation of principles of natural justice as one of the pleas and that the appellants were not prejudiced in any way.

5. Penalty:

The lower authorities imposed a penalty on the appellants. The Tribunal held that in the absence of any mens rea, the imposition of penalty could not be sustained.

Separate Judgment:

Per: H.R. Syiem, Member (T):

The show cause notice demanded duty on structural fabrication and railway wagons, alleging that the appellants paid duty only on the cost of conversion without including the value of raw materials. The Member expressed dissatisfaction with the proceedings, noting that neither the show cause notice nor the order of the Collector detailed the job work done by the appellants. The Member found that Notification 119/75 was not applicable as the articles supplied to the job worker were not returned in the same form. The Member also found that Notification 120/75 was applicable as the prices charged by the appellants were correct and not influenced by any commercial or contractual relationship. The Member concluded that the department's efforts to recover the duty were not sustainable and joined in setting aside the Collector's order and allowing the appeal.