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TMI Blog1986 (4) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... he reason that there were no allegations that the short levy was for the reason of suppression of facts or mis-statement or mis-declaration with intent to evade payment of duty. He allowed the respondents appeal accepting the plea that there was no suppression of facts or mis-statement and mis-declaration. In the ground of appeal, it has been stated that the respondents had not disclosed in the price-list, filed by them, the fact of realisation of excise duty in excess paid by them and, in view of this, it follows that they have been mis-declaring and suppressing facts, and provisions of Proviso to Section 11A(2) would apply. It has also been pleaded that the Collector (Appeals) Central Excise, Calcutta, has not advanced any cogent reason as to why the observation of the Assistant Collector for invoking five-year limitation was wrong. We find before the Collector (Appeals), the respondents had cited the case of Ganga Spinning Mills, reported in 1983 E.L.T. 1674 . The learned SDR brought to our notice the price-list, which had been approved, and pleaded that the respondents did not show the element of duty which was abatable. We find that a certain price has been shown under Colum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the abatements had been legally, correctly made for arriving at the assessable value inasmuch as under the Finance Act, 1982 Clause 47, the explanation was added to Section 4(4)(d)(ii) and retrospective effect could not be given to this amendment in respect of the duty paid before the amendment of the Section. 3. He could not however formulate his arguments in this regard clearly as to how, when the limitation available under Rule 11A was there, the demands could not be raised. The following facts are not disputed :- (i) price-list and classification lists had been approved by the proper officer; (ii) price shown in the price-list was ex-duty and there was no indication of the duty abated from the wholesale price; (iii) the respondents did not file with the Department the relevant time any documents showing that they were actually collecting more duty than they were paying to the Department; and (iv) the respondents did not reveal the wholesale price being charged by them. The Department s case, however, is that since the appellants did not disclose the relevant facts regarding the amount of wholesale price charged by them, including the duty and the abatement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not revealed by them, the odium of suppression of facts with intent to evade payment of duty automatically gets attached to the respondents. No case has been made out before us in the grounds of appeal as to how, in the absence of any allegation regarding fraud, collusion, wilful mis-statement or suppression of facts, etc., with the intent to evade payment of duty, the Assistant Collector s order can be sustained. We find in fact the respondents had revealed the fact that they were availing of the benefit of notification, and had been submitting RT-12 accordingly. We find the ratio of the judgment cited in 1985 (21) E.L.T. 299 is applicable to the facts of this case. We, in the circumstances, find no reason to interfere with the order of the Collector (Appeals) and reject the appeal of the Department. Sd/- (V.P. Gulati) Member (T) (S.Duggal) Member (J) New Delhi Dated : 27-3-1986 I agree, but separate note appended, which would be part of this judgment. Sd/- (S. Duggal) 7-4-1986 5. [Per : S. Duggal, Member (J)]. - While I agree with the order proposed by my Learned Brother Shri V.P. Gulati, Member (Technical), I wish to add few observations on general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ND NOTICE NO. 22/82 DATED 20-10-1982. To The Indian Card Board Industries Ltd., 34/1A Bon Behari Bose Road, Ramkristopur, Howrah (L-4 No. l2/Paper/67) Whereas it appears that the following duties have been short levied and whereas the said amount is recoverable from you under Section 11A(1) of Central Excises and Salt Act, 1944, you are hereby requested to show cause to the Assistant Collector, Central Excise, Calcutta XIV Divn. 25 Princep Street, Cal-72 why you should not be required to pay the said amount as determined by the Asstt. Collr. C. Ex. Cal. - XIV Divn. under Section 11A(2) of Central Excises and Salt Act, 1944. 1. Particulars of goods to which short levy relates and particulars of the relevant clearance documents, if any Paper Paper Board as per Annexure 'A' T.C. 17(2) cleared under CPIS 2. Period to which short levy December 1980 to March 1981. relates Basis Special Cess Dec. 80 3423.40 171.15 28.53 Jan. 81 1483.43 74.15 7.72 Feb. 81 2482.32 124.11 12.41 Mar. 81 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h short levy:- April 82 to August 82. (ii) Particulars of goods to which short-levy related and the particulars of statement of clearance documents, if any : - Paper Paper Board under T. I. 17(2) cleared under GPI concerned during the above period. (iii) Amount of short levy:- Rs. 49,258.05 (Rs. Forty-nine thousand two hundred fifty-eight and Paise Five only). Details as per Annexure A attached with it. (iv) Ground on which the afore-mentioned is proposed to be recovered :- In course of assessment of RT-12 for the month of April 82 to August 82, it has been detected that the Assessee cleared their products from their factory at a concessional rate of duty @ 32.5% and 40% Adv. (as applicable) Less 75% Granted under Govt. of India Notification No. 128/77, dated 18-6-1977 but they realised the Central Excise duty (Both Basic Spl.) from the buyer at full Rate i.e. 32.5% and 40% Adv. (as it is evident from their relative sale-voucher etc.) and whereby did not pay duty on the amount realised in excess of the value cleared by them for the purpose of assessment of the Central Excise duty and cess as shown in the detail, in Appendix A attached. 2. You should produce at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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