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TMI Blog1989 (1) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... nge I, Pune IV Division, observed that if the cost of raw material is added to job work charges charged by M/s. Hiper, from the customers and if this is added to the value of clearances of Tariff Item 68 goods manufactured and cleared by the party, the value of total clearances exceeded Rs. 30,00,000/- during the period from 1st April,1980 to 31st March, 1981. The Range Superintendent issued the following show cause notices desiring the respondent to show cause as to why the amount demanded from them should not be recovered under Section 11A of the Central Excise Rules, 1944:- Date of show cause notice Period for which non-levy relates Value of Clearances Amount of duty i.e. non-levy 28.9.81 1.4.81 to 31.8.81 Rs. 16,36,662.33 Rs. 1,30,932.96 10.2.82 1.9.81 to 30.11.81 Rs. 6,81,619.64 Rs.54,529.57 8.7.82 29.9.80 to 31.3.81 Rs.13,03,499.47 Rs.l,04,279.98 Total Rs. 2,89,742.51 3. The assessee replied to the show cause notices vide their letters dated 23.10.1981, 5.4.1982 and 30.8.1982 and stated that the clearances during the financial year 1979-80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication list at the relevant lime, this issue could not be brought at this stage. He had confirmed the demands for Rs. 1,30,932.96, Rs. 54,529.57 and Rs. 1,04,279.98 under Section 11A of the Central Excises and Salt Act,1944. 5. Being aggrieved from the aforesaid order, the respondent had filed an appeal before the learned Collector of Central Excise (Appeals), Bombay .The learned Collector of Central Excise (Appeals), Bombay had allowed the appeal filed by the respondent and being aggrieved from the aforesaid order, the appellant has come in appeal before the Tribunal. 6. Shri J.N. Nigam, the learned senior departmental representative who has appeared on behalf of the appellant, has reiterated the facts. He has referred to the notification Nos. 119/75 and 105/80 dated 19th June, 1980 and the period involved is 1981-82. Shri Nigam has argued that the respondent did not include the cost of materials supplied by the customers and if this is included, the value of clearances will be beyond Rs. 30,00,000/-. He has argued that the Collector of Cental Excise (Appeals), had allowed the respondent s appeal on the basis of the following judgments:- (1) 1981 ELT 859 (Bombay High Court) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The Tribunal had relied upon the judgment of the Hon ble Supreme Court in the case of M/s. Empire Industries Ltd. and others reported in 1985(20) ELT 179. Shri Nigam has pleaded for the acceptance of the appeal. 8. Shri R.K. Habbu, the learned advocate, who has appeared on behalf of the respondent, slates that there were three show cause notices and one show cause notice dated 17th June, 1982 which appears as annexure G of the paper book for the period 29th September, 1980 to 31st March, 1981 is barred by limitation as the demand can be restricted to six months from the date of issue of the show cause notice. Shri Habbu has relied on the order passed by the Collector of Central Excise (Appeals) and the earlier judgments cited before the Collector of Central Excise (Appeals). Shri Habbu, the learned advocate, states that the facts of the Tribunal s judgment in the case of M/s. Vijay Industries, Calcutta v. Collector of Central Excise, Calcutta vide order No. 306/1988-B1 dated 3rd June, 1988 are different. He has pleaded for the dismissal of the appeal. 9. Shri Nigam, the learned senior departmental representative, has stated that the plea of time bar has been taken by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Cases 435 had confirmed its earlier view in the case of Empire Industries Ltd. and Other v. Union of India reported in 1985 (20) ELT 179 (SC). The Hon ble Supreme Court had held that: Consistent with the provisions of section 4 of the Central Excise Act and the Central Excise (Valuation) Rules, 1975 framed under section 37 of the Act, it cannot be said that the assessable value of the processed fabric should comprise only of the processing charges. This extreme contention, if accepted, would lead to and create more problems than it is supposed to solve; and produce situations which could only be characterised as anomolous. The incidence of the levy should be uniform, uninfluenced by fortuitus considerations. The method of determination of the assessable value suggested by the processors would lead to the untenable position that while in one class of grey fabric processed by the same processor on bailment, the assessable value would have to be determined differently dependent upon the consideration that the processing house had carried out the processing operations on job work basis, in the other class of cases, as it not unoften happens, the goods would have to be valued di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any of the provisions of the Central Excises and Salt Act, 1944 or of the Central Excise Rules, 1944 with an intent to evade the payment of the C.E. duty. Therefore, the time limit of 5 years is not applicalbe to any of the three notices (to show cause)-cum-Demands. The Notice (to S.C.)-cum-Demand No. PRI/Hiper/Show Cause/82 dated 17.6.1982 for the period from 29.9.1980 to 31.3.1981 for Rs. 1,04,279.98 is, therefore, clearly time barred. The other two notices (to S.C.)-cum-Demands are within the time limit of 6 months, but in view of the factual as well as the legal position stated above, they also do not stand on the merits and are not tenable in law. In short, the order in original of the Asstt. Collector deserves to be set aside forthwith." A simple perusal of the ground of appeal shows that this plea was agitated by the respondent before the Collector of Central Excise (Appeals) and it is not a fresh plea before the Tribunal. Even if it is assumed that this plea was not there, a legal plea can always be taken for the first time before an appellate authority and a fresh plea can also be taken before the Tribunal for the first time on the basis of the material available on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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