9911796707
TMI Blog1989 (4) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... at appellants are before us. 2. We have heard Shri N. Singh, consultant, on behalf of the appellants and Shri J.N. Nigam, SDR, on behalf of the department. 3. At the very out-set, the learned consultant submits that the appellant s case will be limited to the plea of limitation. The period for which duty is demanded is from 15.9.78 to 25.8.80. The Show Cause Notice was issued on 6.7.81. Shri N. Singh points out that the Show Cause Notice did not make any allegation of fraud or suppression of facts. While the Show Cause Notice contains a statement on the basis of which the demand of duty is claimed to arise, it is submitted, no inference of fraud or suppression of facts can arise from this statement of facts. In the circumstances, it is submitted that the entire demand of duty is barred by limitation. The learned consultant relies on the decision of this Tribunal in the case of Haryana State Electricity Board v. Collector of Central Excise, Chandigarh-1988 (12) ETR 189 = 1988 (37) E.L.T. 81 (Tribunal). 4. Shri Nigam strongly contends that, in the circumstances of the case, the question of limitation does not arise. It is emphasized that the law is well settled that as long a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u intend to rely in support of your defence. 4. You should also indicate in the written explanation whether you wish to be heard in person before the case is adjudicated. If no cause is shown against the action proposed to be taken within 30 (thirty) days of the receipt of this notice, or you do not appear before the Assistant Collector when the case is posted for hearing, the case will be decided in accordance in the provisions of Rule 10 of the Central Excise Rules 1944 and Section 11-A of the Central Excises and Salt Act 1944, without further reference to you. You are further instructed to file fresh classification list for the period in question." 6. Before we take a view on this Show Cause Notice, it is essential to bear in mind the case law on this point, which has come up for consideration again and again. It seems to us that the view taken in these various cases is fairly consistent. Although in some cases, on the facts of the case, the view taken can be considered as a lenient towards theassessee. 7. Beginning with the case law relied upon by the appellant, we find that in the case of Haryana State Electricity Board v. Collector of Central Excise, Chandigarh (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding Rule 173Q which referred to contravention of Rules with intent to evade payment of duty. 8. The case law relied upon by the department cannot be viewed in isolation without giving a mistaken impression of what has been the consistent interpretation of law on the point at issue by the Tribunal. In the case of M/s. Mac Laboratories (P) Ltd. v. Collector of Central Excise, Bombay -1985 ECR 305 = 1985 (19) E.L.T. 307 (Tri.) it was noted in the order of the Tribunal that the relevant Show Cause Notice did not charge the appellants with fraudulence or suppression. All that had been alleged was that the appellants had incorrectly availed the benefit of relevant notification. In the order of the adjudicating Officer, however, it was held that there was wilful mis-statement and suppression of facts at the time of filing the classification list in respect of the impugned product with intent to evade payment of duty, but the Assistant Collector threw no light at all on what the mis-statement and suppression of facts was. It was held that if there was any such wilful mis-statement and suppression, it should have been spelt out in detail, because a wrong payment of duty at a lower rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of facts, the period of 5 years could not be invoked. 14. Above all, we would refer to the others of the Hon ble Supreme Court just reported in the case of Collector of CentralExcise, Hyderabad v. M/s. Chemphar Drugs Liniments, Hyderabad - 1989(1) SCALE 436 in which the view of the Tribunal that demand raised for a period beyond 6 months was not maintainable was upheld with the following observations: In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful mis-statement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, beyond the period of six months . 15. A plai ..... 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