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TMI Blog1984 (4) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... d failed to furnish a true and correct statement of facts in Annexure A to his application dated 26th August, 1983. Nor did he furnish the draft of the questions of law sought to be referred initially in Annexure B to the said Application. Subsequently, after the Application became part heard, he filed a revised Annexure B dated 13-3-1984 in which he attempted to set out, what according to him, is a question of law that has to be referred to the Hon ble High Court of Allahabad. 2. The Tribunal s order which had, according to the Applicant, given rise to a question of law, is the one contained in Order No. 221/83 dated 14th June, 1983 in Appeal No. ED(Del.)(T.) 130/82-NRB, between M/s. Shriram Pistons Rings Ltd. v. Collector of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it then existed, it is only if a short levy was occasioned by reason of - (i) fraud, collusion or any wilful misstatement or suppression of facts by such person or his agent; or (ii) contravention of any of the rules with intent to avoid payment of duty; (emphasis supplied) the period within which the notice to show cause could be issued is five years instead of six months; (B) on the facts, that, it cannot but be held that the proviso to Rule 10 was altogether inapplicable for the recovery of the duty in this case, for,- (a) when the entire process was discussed and ultimately the Revenue were told that they would start remelting all our returned goods in accordance with the clearance given by the excise authorities, there ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 10 so as to attract the five year period of limitation to govern the adjudication in question; (e) the second, clause of the proviso to Ride 10 is equally inapplicable seeing that- (i) it speaks of contravention of the provisions of the Rules with intent to evade payment of duty ; (ii) no such intent had been either alleged in the show cause notice nor proved in the proceedings; (iii) in actual fact the discussions that proceeded the commencement of the actual resort to 173-H negate the intent to evade payment of duty; one would hardly expect correspondence and discussions of the entire procedure to be followed if the intent were actually to evade payment of duty; (iv) even if, therefore, there was contravention of any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to Rules 9,10 and 173Q. Rule 173H itself does not speak of an abuse of its provisions which may entail payment of duty or prescribe the period of limitation within which such duty could be recovered; (c) a perusal of the aforesaid Rules 9,10 and 173Q reveal that in terms of the proviso to Rule 10 the period within which a notice to show cause in terms thereof could be issued within 5 years instead of six months of the relevant date only if either- (i) fraud, collusion or any wilful mis-statement or suppression of facts by such person or his agent; or (ii) contravention of any of the rule with intent to avoid payment of duty, is not only alleged but proved as well. (d) if, beginning with show cause notice, the entire case for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y contravention of any of the Rules, it was our finding that it was not with intent to avoid payment of duty. The question either betrays ignorance of or otherwise confuses the real issue that arose for determination and were actually decided in the Appeal. Nor did the applicant challenge our findings in any way. The aforesaid question cannot be said to arise out of our order in the circumstances. 8. Indeed, the, entire application is nothing but an attempt to confuse the issues and to that end, the facts of the case had even been distorted- (a) In para (1) of the Annexure A to the Application (Statement of facts) it was stated that - it was detected by the Central Excise Officers on 21-8-1979 that they have illegally removed the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re under Rule 173H and the accounts to be maintained as prescribed by the Collector, Central Excise, Kanpur under Notification No. 5/70". (c) In para (3) of the said Annexure, reference was made to the Respondent s letter dated 10-1-1977. In the said letter, a reference was categorically made to the visit of the Assistant Collector on 31-12-1976 when the matter was discussed and it was further placed on record that we were informed that we can start remelting all our returned goods and remake them into fresh pistons and rings of the same category and redespatch them without payment of duty. In view of the above clarification, we propose to remelt all the goods that are returned to our works for making reprocessing and make fresh pistons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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