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TMI Blog1989 (9) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... terlinked and connected they are clubbed together and disposed of by this common order. 2. Facts of the case in brief are that the first appellants M/s. Hindustan Foam Industries, Bhopal (H.F.I.) manufacture polyurethene foam products in their factory at Bhopal. It was established in 1972 as a partnership concern with the partners Shri Zahid Jamil and his family members with 15% shares and the second appellant M/s. AFCO Ltd., Bombay with 85% shares. The factory started production in August, 1973. Further New Sales Agency as marketing company was formed under the name and style of M/s. Union Agencies ( UA ) as partnership concern consisting Zahid Jamil partner of the 1st Appellant (HFI) as working partner with 15% share and second appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, machinery, building, etc. of the H.F.I, under Rule 173-Q of the said Rules and however have an option to redeem the same on payment of Rs. 5 lakhs. Aggrieved by this order both the appellants preferred an appeal to the Central Board of Excise and Customs and the Board in the appeal order No. 152 153 dated 31-7-1981 held that the Collector was right in disregarding the price charged to M/s. Union Agencies could not be the basis for assessable value unless suitable allowance for costs subsequent to clearance are allowed. Accordingly, it remanded the case for fresh consideration and adjudication after explaining the basis proposed to be adopted and after hearing the appellants. The Board set aside the part of the Collector s order relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice to firm and he placed a reliance reported in 1982 (10) E.L.T. 329 (C.B.E. C.) - Central Board of Excise and Customs (Appeal Case) v. In Re: Smt. Shyam Kumari Baraut Others and 1987 (13) ECR 817 (Cegat NRB) - M/s. Mukha Mal Gokal Chand v. Collector of Customs Central Excise, New Delhi. 5. As regards second and third issue he explained the distinction between Rule 10 and 10A which were in force prior to 6-8-1977 and as the Department was aware of the declared price and there was no case of non-declaration or suppression, hence case of misstatement was covered by Rule 10 and not the Rule 10A which was the residuary section. The demand covered for the period December 1973 to August, 1975 and demand has been issued after expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand is time barred as Rule 10 was applicable to the relevant period for charge of under valuation as the price list was approved by the Department and hence the residuary Rule 10A is not applicable as held in case of Union Carbide (India) Ltd. v. Assistant Collector of Central Excise -1986 (23) E.L.T. 429. 7. Shri Krishnamurthy submitted that issue of show cause notice to partners is as good as to issue to the firm as the firm and partners are one and the same. As regards applicability of Rule 10 and Rule 10A he submitted that this is a clear case of suppression as it was pre-planned to evade tax as clearly found in the original order passed by the Collector as he has given a clear finding deliberate arrangement was made to undervalu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the appellants has got a force in distinguishing the firm from partners in view of the ratio of the decision cited supra. Apart from the cases cited by them in a recent case which is reported in 1989 (42) E.L.T. 189 in the case of Additional Collector of Central Excise v. Kathiresan Pillai, Hon ble Madras High Court while dealing with the matter of cancellation of licence and validity of issue of show cause notice, observed that issue of show cause notice to the firm is not valid, as no show cause notices were issued to the partners as the licenses were in the name of the partners. Neither the firm was licence holder nor has it applied for renewal. Hence the notice issued to the firm was non est in law. In this instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the Department it was a case of suppression and hence Rule 10 A is applicable. But on facts the price lists filed by the appellants was duly approved and appellants have removed the goods after payment of duty on the basis of approved value. Difference arose on account of assessable value adopted by the Department by taking the sale price of the goods sold by the related person cannot be the basis of non-declaration or suppression to bring the appellants under residuary Rule 10A of the Act as envisaged in the decided cases cited by the appellant mis-statement, charge of under-valuation was specifically covered under Rule 10 itself and hence the Rule 10A was not applicable. The demand having been issued after the expiry of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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