9911796707
TMI Blog1988 (9) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... llants were enjoying concessional rate of excise duty to the extent of 50% of the effective rates in terms of notification No. 128/77-CE. During the course of scrutiny of the appellants accounts it came to the attention of the Central Excise Officers that the appellants were collecting central excise duty from their customers at the full rate (effective rate) but debiting only 50% of the duty to the Government. Therefore, the Department were of the opinion that the appellants were collecting extra amount from their buyers in the name of excise duty and, therefore, the assessable value had to be revised upwards. At the relevant time the appellants were paying duty on invoice value under notification No. 120/75. The Department issued a show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has been given retrospective effect from 1st October, 1985. In view of this position of law no doubt is left now that only the excise duty payable taking into account the full and complete effect of any exemption notification (in this case Notification 128/77) is to be reduced from the price of the goods for the purpose of determining the value under Section 4. The judgments of Delhi High Court cited by the appellants are not relevant in view of the amendment of law with retrospective effect as stated above. On the question of time bar their plea is again untenable. The manufacturer cannot be allowed to charge more for the goods in the garb of excise duty. Only the actual element of excise duty payable and paid by them can be claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have dealt with a point not raised earlier and cited the case of M/s. International Clearing and Shipping Agency, Madras v. Collector of Customs, Madras reported in 1983 ECR 596D (CEGAT, Madras). However when questioned by the Bench Shri Kohli confirmed that the appellants took up the ground of time-bar in reply to the show cause notice. Arguing that time bar under Section 11A is still applicable even after the retrospective amendment introduced by the Finance Bill Shri Kohli cited the case of M/s. J.K. Cotton Spinning and Weaving Mills and another v. Union of India and others reported in 1983 (12) E.L.T. 239 (Del) = 1983 ECR 117D (Delhi). Shri Kohli further argued that when certain exemptions were given under notification No. 128/77 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not a good law. 7. Shri Kohli in his brief rejoinder reiterated that the Collector (Appeals) was wrong in giving a finding on time bar. 8. We have considered the arguments of both sides. Shri Kohli s arguments that the provisions of Section 4 as amended by the Finance Bill of 1982 cannot be taken into consideration have to be rejected straightaway. The judgment of the Tribunal in the case of M/s. Atma Steel Private Ltd (supra) laid down that the law as in force on the date of show cause notice is the law which should be invoked. In this case on the date of show cause notice the amended Section 4 was in force as the Finance Bill 1982 amended the Section retrospectively from 1975. We cannot accept his argument that once the price lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which they realised from their buyers was not Central Excise duty and was an element of value. Therefore, the orders of the lower authorities are held to be correct. 10. In this case, as mentioned earlier there was clear suppression as the total sale value was not disclosed to the Department. Therefore, there is nothing flimsy in the grounds on which the period of limitation was extended. 11. We mention the other arguments of Shri Kohli only to dismiss the same. The arguments are that the C. Ex. officers should have checked the price list with the invoices. Apart from the fact that no invoices could have been filed with the price list, it also remains that this check can be done at any time. Even if there is a failure in discharging t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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