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TMI Blog1991 (2) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Officers, during their visit to the appellants factory, verified the product Calcium Pantothenate . They found that the samples of the product found in the premises did not mention any symbol or monogram on the carton of the product, but each strip of the tablets showed the printed symbol/monogram/label of M/s. Adel Laboratories (Pvt.) Ltd. as manufacturer and M/s. Sigma Laboratories, Bombay as their marketing agent. Because of this, the officers came to the conclusion that the product appeared to fall under T.I. 14E of C.E.T. and not under T.I. 68 which the appellants have claimed along with exemption for goods under T.I. 68 vide Notification 234/82. The Department, thereafter, conducted further investigation and it appeared to the Department that the appellants had wrongly availed of exemption under Notification No. 234/82 for which a show cause notice was issued to the appellants along with M/s. Sigma Laboratories and one Sh. R.G. Prasad, Assistant Plant Manager of the appellants. The case was adjudicated, subsequently, by the Collector after hearing them in person, who held that the appellants had filed the classification list for the product classifying it unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out that although the show cause notice was, thus, issued by the Additional Collector, the Department had ultimately adjudicated the case at the hands of the Collector of Customs and Central Excise and not the Additional Collector, which would probably indicate that they were themselves aware of the infirmity of the show cause notice issued by the Additional Collector demanding duty short levied under proviso of Section 11A of the Act. The Ld. Consultant pointed out that after the amendment to the Section in 1985, only, the Collector will have to sign the show cause notice and adjudicate upon the short levy. The Ld. Consultant, relied upon the case reported in 1990 (15) ETR 81 - Lohia Machines, to say that show cause notice is invalid when signed by the officer other than the Collector. He pointed unlike in the Customs Act in the Central Excise Act, there is no class of officer specified. The Additional Collector is defined as Collector only under Central Excise Rules. The Ld. Consultant also cited and relied upon the decision of the Tribunal in the case of Meghmani Dyes and Intermediates v. Collector of Central Excise, Vadodara and its Order 926/90-C, dated 16-8-1990 wherein th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Kanpur - 1988 (37) E.L.T. 65 (Tri.) = 1988 (18) ECR 34 to the effect that the Additional Collector has to be equated with Collector for purposes of Act and the Rules. Show cause notice, therefore, is validly issued by the Additional Collector. Rebutting the submissions of the appellants that since there was an approved classification list, Rule 9(2) could not be invoked as for clandestine removal, the Ld. D.R. pointed out that perusal of the order of the Collector would show at page 7 that there was a charge of mis-declaration regarding the goods which will attract Section 11A. Rule 9(2) is also attracted as the classification list was got approved by mis-representation of facts. The Ld. Consultant submitted that the Department had licensed the appellants as P or P madicines manufacturers under T.I. 14E. So, when the classification list is submitted by such a licencee claiming item under 68 CET, it was for the Department to make further inquiry and satisfy themselves. He, further, argued that the definition of Collector which includes Additional Collector occurs only in the Central Excise Rules and not in any Section of the Central Excises and Salt Act. There sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tributed to that term, in the natural course." Thereafter, the Bench has discussed scope of inclusive definition with reference to Maxwell on the interpretation of statutes (12th edition) and illustrations given therein. It also referred to AIR 1969 (11) Kerala, AIR 1974 (SC) 818 and AIR 1961 (SC) 606. Ultimately the Bench in Para 80 held as under: We have thus no hesitation in holding that by virtue of inclusive definition in rule 2(ii), the term Collector would mean Additional Collector also, for all purposes. 5. Even in the Meghmani case, the Tribunal did not deviate from the conclusions of the Larger Bench, by observing that in the S. Kumar s case, the notification, in question, did not try to over-ride the Act, but had only tried to enlarge or extend definition of the word Collector given in the Rules by including Additional Collector therein. Further, in that case, essentially, the Tribunal was determining whether the power under Section 11A, prior to its amendment, vested in the Assistant Collector could be exercised by the Collector. This is not the issue in the present case. The finding of the Larger Bench of the Tribunal in the case of S. Kumar that by vir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether there was any fraud, collusion, wilful misstatement or suppression of facts for the Department to be justified to claim duty beyond a period of six months. This is a question of fact. It was found by the Tribunal that it was not possible for the appellant to contend that the appellant had made a correct statement. The Tribunal noted that the appellant could hardly contend that it discharged the onus of making correct declaration if it had withheld the description which was commonly used in respect of the goods not only by itself, but also by those from whom it bought or to whom it sold the products. The appellant itself was both buying and selling these nuts and as such there was no conceivable reason why these nuts were described as end-fitting in the declaration of the Department. It may be noted that in the declaration it was so described. The Tribunal was of the view, and it cannot be said not without justification that these goods should have been described as nuts because the appellant itself had treated these as nuts. Therefore, from this conduct suppression is established. The fact that the Department visited the factory of the appellant and they should have been awa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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