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TMI Blog1993 (6) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... Refractory Products. 2. In the Appeal it has been contended that the duty in question was sought to be recovered from them under Rule 56A(5)(i). They had pointed out in their reply that under the said provision the notice should have been issued within six months and hence the notice issued on 21-12-1985 in respect of the alleged discrepancies during the period 7-3-1981 to 18-1-1984 was time barred. The Assistant Collector did not accept their plea of time bar and held that the issue being covered by Rule 56A(3)(v), there was no question of time bar. That finding was upheld by the Collector (Appeals) when they went up in Appeal before him. It has been contended in the present Appeal that they had not been given adequate opportunity to show how the alleged discrepancies had occurred in the RG-23 register .as the notice was issued under Rule 56A(5)(i) which dearly provided for time limit of six months for the issue of notice. The demand had been confirmed under a different provision, namely, 56A(3)(v). This question apart, the entries in RG-23 register were only clerical mistakes and there were no removals without payment of duty. Because of this time bar angle, they did not go in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low, that the show cause notice sought to recover the duty in question under Rule 56A(5)(i) and that the said provision requires the notice to be issued within a period of six months, this does not actually fall under the said provision since the same is meant to cover cases of credit having been allowed on account of an error, omission or misconstruction on the part of an Officer. Credit had been correctly allowed. The dispute has arisen as certain quantity of the material received on which credit had been taken has been held to have not been accounted for in the RG-23 account. Such a case falls under Rule 56A(3)(v). Though this provision had not been cited in the notice, it is this which had been pressed into service in the order. It is well established in law that a mere citation of a wrong provision of law in the notice does not vitiate the same if the charge has been spelt out disclosing the offence and the authority has got the power to act under the provisions actually exercised and invoked. In that view of the matter, it will be seen that the proceedings do not suffer from any infirmity as the notice had clearly alleged that they neither accounted the quantity of the materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e few entries in question have been taken to mean non-accounting of the material and its non-utilisation for the manufacture of the final product. There is a two-fold plea of the appellants : one is that the demand is time-barred. This has been considered and rejected. This position will be examined now. The other plea is that because of the long delay in pointing out the wrong balance in the RG-23 Part II account, it was difficult for them to obtain details of utilisation of materials at that length of time. 8. It has been held by the authorities below that there is no time limit for issue of the notice under Rule 56A(3)(v) and the demand was not, therefore, barred by limitation. The Collector (Appeals) had observed in his impugned Order-in-Appeal that the details of quantities of white Alumina received by them from time to time but not accounted for had been given in the show cause notice and that this charge had not been successfully rebutted either before the Assistant Collector or in their Appeal. As stated earlier what had been referred to in the show cause notice is that the closing balance was less than what it should have been for five different entries. The opening bala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violative of Article 14 of the Constitution. Going by the ratio in the above decision and applying it to the present case, I am of the view that the reasonable time referred to by the Supreme Court would be the time limit prescribed in Central Excise law for recovery of duty. The recovery under Rule 56A(3)(v) is also of duty and when a time limit is there for recovery of duty under Section 11A or Rule 56A(5)(i), the same time limit would be appropriate. We need not look for any other time limit outside provisions of Central Excise Law. However, in view of the cause of action necessitating the recovery being different under these provisions, the relevant date for computation of the time limit has to be decided taking into account the particular cause of action, where there is no express provision therefor in the statute. As the demand has arisen on account of non-accounting of the goods received under Rule 56A and as the said non-accounting was brought to the notice of the department by means of the RG-23 statements accompanying the RT-12 returns, the date of receipt of the said returns will be the relevant date for reckoning the time limit. The short accounting of the input materi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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