9911796707
TMI Blog1992 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-1978 on the ground that it was time barred under Rule 10 of the Central Excise Rules, 1944 in the absence of any allegation of fraud, wilful mis-statement or suppression of facts in the show cause notice. The Department's grounds of appeal is firstly, that the goods - Mill Board - on chemical test were found not to be homogeneous and did not, therefore, qualify for exemption from duty under Notification 70/76-C.E., dated 16-3-1976 which grants exemption to homogeneous Mill Board. Secondly, it is a case of mis-classification because it is only on chemical test that the correct nature of the goods became known. Since the show cause notice contained the facts regarding the drawal of sample, result of chemical test etc., the allegation of fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng out all sorts of tests to know the verity (?) of their products quality and its composition from time to time. When the unit has claimed concession under Notification. No. 70/76 on their product "Mill Board" under classification lists from time to time then the party must have the full knowledge regarding composition of their product and its appearance. The unit had also full knowledge of conditions to avail benefit of Notification. No. 70/76 for "Mill Board". The Unit has never declared any time to the deptt. that the product classified by them under Mill Board are not appearance having a homogeneous categories or never come forward afterwards also with this fact to the department. The above facts only came to the notice of the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marginal case, the Department could not proceed against the assessee unless, there was evidence that there was a conscious effort for evading duty. He also referred to another decision of the Tribunal in the case of Collector of Central Excise, v. Bombay Dyeing & Mfg. Ltd. [1992 (57) E.L.T. 299 (Tribunal]. On the question of deliberate manipulation of records to obtain the benefit of an exemption Notification, he cited the decision of the Tribunal in the case of Rajanarayan Textiles Limited v. Collector of Central Excise [1990 (48) E.L.T. 285]. He also referred to the decision of the Tribunal in the case of Collector of Central Excise v. O.C.M. (India) Limited, Amritsar [1991 (53) E.L.T. 138 (Tri.) = 1991 (18) ETR 922], which refers to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saying that not only was the duty demanded under a wrong rule, there was no allegation of suppression or mis-statement, nor was there any proposal in the show cause notice to impose penalty. He, therefore, submitted that the decisions of the Tribunal cited by him fully covered his case and the Department's appeal should be dismissed. 9. While replying, Smt. Ananya Ray submitted that the respondent should at least have their own bona fide belief based on their own test and it could not be said, in the circumstances of this case, that the respondents had such a belief. As for the suggestion of the learned Consultant that assessment should have been made provisionally, she submitted that this was done only when the Department considers it ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2,57,938.71 was attached with the Notice. It will appear from the show cause notice that there is not the slightest indication of the ground of short levy; the Supdt. did not consider it necessary to enclose a copy of the test reports which form the basis of the demand. The demand was initially issued under Rule 10-A but, by a corrigendum, dated 3rd July 1979, it was amended to be issued under Rule 10(1)(c). The respondents by their letter of 26th July 1979 challenged the jurisdiction of the officer to issue the Notice under Rule 10-A, which had been deleted by Notification 267/77, dated 6th August 1977, i.e. about two years ago. They also challenged the Notice under Rule 10(1) (c) because this provision relates to erroneous refund of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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