9911796707
TMI Blog1992 (1) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ard cleared by any manufacturer for home consumption during the financial year as follows :- (a) On the first 500 M.T. @ 15% ad valorem. (b) On the next 500 M.T. @ 25% ad valorem. The appellants had been clearing straw board from their factory at Ratlam after paying concessional rate of duty applicable vide the aforesaid notification but on scrutiny of the bills and invoices issued by them to their customers, it was noticed that they have recovered C.E. duty from their customers at the full tariff rate i.e. 40% ad valorem. This excess realisation in the garb of duty by the appellants herein enhanced the assessable value and show cause notices were issued by the department demanding differential-duty on the excess recoveries so made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut after the statutory period of three months for filing an appeal before the Collector of Central Excise (Appeals) against the order-in original was over. The said Collector without going into the merits of the application rejected it on the ground that the review application was received after the appeal period was over and the review procedure could not be made use of circumventing the limitation for filing the present appeal before the competent authority. Hence this appeal before the Tribunal. 2. Shri A.C. Jain, learned advocate for the appellants has contended that all the show cause notices are not maintainable inasmuch as after amendment of Section 4 by insertion of the Explanation to Section 4(4)(d)(ii) the show cause notices sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices in the present case are based on a Press Note and the decision has also been taken on the basis of the Press Note. In other words, he stressed that the adjudicating authority has been guided by the Press Note in arriving at its decision and it is not a case of application of mind by the said adjudicating authority on its own. Therefore, in that light the learned advocate has submitted that the order-in-original passed by the Assistant Collector is not tenable in law and vitiated by the non-application of the mind. We find that the learned advocate is factually wrong in his submission. The adjudicating authority has been guided in arriving at its decision not by the Press Note but by the retrospective amendment of Section 4(4)(d)(ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, learned SDR, Shri V.K. Jain reiterates the findings of the original authority. 3. We have given our careful consideration to this plea of the learned advocate. It is true that some show cause notices would be hit either wholly or partly if the limitation of six months is applied but we are of the view that the shorter period of six months stipulated in Section 11A(1) (Rule 10, as it stood earlier) would not apply inasmuch as the excess recovery was being made by the appellants through their invoices and bills issued subsequently by the appellants. Such excess recovery made by the appellants in their invoices and bills was not reflected either in the gate passes or R.T. 12 returns submitted by them and finalised by the department. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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