1988 (6) TMI 256 - AT - Central Excise

Summary

Issues:
1. Interpretation of duty concession eligibility under Central Excise Notification No. 80/80.
2. Application of Section 11A of the Central Excises and Salt Act and Central Excise Rule 9(2) regarding duty demand.
3. Provisional classification approval and its impact on limitation for raising demand.
4. Dispute over whether past clearances were provisionally assessed.
5. Legal presumption of evasion of duty and contravention of law.

Analysis:
1. The appeal challenged an Order-in-Appeal regarding duty concession eligibility under Central Excise Notification No. 80/80. The respondents were called to show cause for duty demand as their clearances exceeded the prescribed limit. The Assistant Collector found no clearances of specified goods in 1981-82 but confirmed duty demand for 1982-83 clearances exceeding Rs. 15 lakhs. The Collector (Appeals) set aside the demand citing the department's awareness of the manufacturing activities, leading to the current appeal.

2. The appellant contended that the demand could be under Rule 9B(5) and Clause 3B(ii) of the notification, arguing against the limitation for raising demand. The respondents highlighted the lack of provisional assessments and non-execution of required bonds under Rule 9B, indicating the assessments were not truly provisional. The Assistant Collector's direction for provisional assessment pending approval of classification lists was challenged.

3. The classification lists' approval without indication of provisional nature raised doubts on the provisional assessment claim. The respondents' correspondence with the department revealed ongoing discussions on clearances and assessments. The show cause notice seeking duty recovery for past clearances was deemed time-barred, as the department was kept informed, and no clandestine clearances were proven.

4. The Assistant Collector's presumption of evasion of duty based on a short levy was refuted, emphasizing the lack of evidence of deliberate contravention with intent to evade payment. The legal presumption of evasion was deemed unfounded, requiring the department to establish both evasion and intent to evade payment. The Collector (Appeals) order was upheld, dismissing the appeal and confirming the correctness of the previous decision.

In conclusion, the judgment addressed issues related to duty concession eligibility, provisional assessments, limitation for raising demand, and the legal presumption of evasion of duty, ultimately confirming the Collector (Appeals) decision and dismissing the appeal.