9911796707
TMI Blog1994 (12) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... Department s application for modification of the stay order, the Tribunal allowed the application filed by the Department, recalled the Tribunal s stay order dated 29-1-1992 and posted the stay application for hearing on merits afresh. When these two orders were challenged before the Allahabad High Court, the Court dismissed the same by its order dated 18-5-1994 observing that the matter will be considered by the Tribunal when it is heard on merits and that there is no occasion for the High Court to interfere in the matter. On the matter, being taken up before the Supreme Court, in SLP No. 9759 of 1994, the Supreme Court had dismissed the same and directed the Tribunal to hear and decide the main appeal within a month as far as possible. When the appeal came up before the Tribunal, it was argued by the Department that the applicants still have to fulfil the statutory condition for hearing of the appeal under Section 35F of Central Excises Salt Act, 1944 by making the pre-deposit of duty. The applicants pleaded that in view of the Supreme Court direction, pre-deposit is not required and that the appeal should be heard. Since the order passed by Supreme Court is silent as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for such sales should form the assessable value irrespective of the amount of such sales, and no recourse should be made to sale price at the depot. The ld. Sr. Counsel cited the following case law in this regard :- (i) Hindustan Safety Glass Work Ltd. v. Assistant Collector of Central Excise - 1985 (21) E.L.T. 38 (All.); and (ii) Indian Oxygen Ltd. v. Collector of Central Excise - 1988 (36) E.L.T. 723 (S.C.). The ld. Sr. Counsel, further, argued as per Supreme Court decision in the case of Rainbow Industries v. Collector of Central Excise - 1994 (74) E.L.T. 3 (S.C.) = 1994 (55) E.C.R.1 to say that price list can be revised if there is erroneous application of law only prospectively effective from the date of show cause notice. Ld. Sr. Counsel also relied upon Supreme Court decision in the case of Tamil Nadu Housing Board v. Collector of Central Excise - 1994 (74) E.L.T. 9 (S.C.) = 1994 (55) E.C.R. 7 that the department has to establish with evidence fraud or mis-statement with intent to evade payment of duty in order to invoke the extended period under Section 11A Central Excises Salt Act which is an exceptional power. It was pleaded that the applicants case would be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoked for deliberate misdeclaration as in the present case, regardless of the fact that the department could have known about it. Ld. S.D.R., further, submitted that the applicants financial position is comfortable having regard to the fact that as per Annual Report 1994 they had declared dividend and the ld. S.D.R. urged that the entire duty amount should be ordered to be pre-deposited. 4. The submissions made by both sides have been carefully considered. It is clear that on the question of limitation the prima facie case is in favour of the department and not in favour of the applicants in view of the decisions of the Allahabad High Court on their Writ Petition against very review show cause notice on grounds of limitation, and in view of the dismissal by the Supreme Court of their SLP against the Allahabad High Court judgment, 1993 (67) E.L.T. 210 (S.C.) in the case of Triveni Sheet Glass Works Ltd. The Supreme Court in para 5 of its judgment gave the following finding : We are of the opinion that the High Court was right in holding that the notices in this case were issued within the period of limitation. Section 35A(3)(b) enables the Collector to give a notice within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which indicated the existence of secret dealing between the party and the favoured buyers. Only a small i.e. about 4% of the total sales had been supplied at the factory gate to such buyers with whom the party had secret dealings. In this manner the party had manipulated to get the whole range of goods assessed at a lower price. Further, the Hindustan Safety Glass Works Limited, to whom the goods had been supplied at a favourably low price were found apparently under the same management as contemplated under Section 370(1-B) of the Companies Act, 1956. Inquiries also revealed that no industrial buyer of the same class could get the goods from the party at the prices at which such goods were sold to M/s. Hindustan Safety Glass Works Limited. The party by adopting the above modus operandi was alleged to have evaded payment of duty amounting to Rs. 4,01,36,959.15P. during the relevant period. (The finer details of the said enquiry would be discussed in juxtaposition to the defence pleas at the appropriate places in the later part of the order). In the preceding paragraphs, I have tried to say that the party had not furnished full information about the total money consideration de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass Works. For this, the Collector has taken the balance-sheet sales figures and made additions and deductions as permissible under the law as laid down by the Supreme Court in the case of Bombay Tyre International. It was submitted before us by the ld. Sr. Counsel that having adopted such a method, based on total turnover less permissible deductions, taking cum-duty net value and substracting the value as per RT 12 on which the duty was paid, an amount of Rs. 1,05,64,886.56 has been worked out as short levy. But again another amount of Rs. 47,24,695.37 has been added as differential duty payable on factory gate sales. It was contended that having worked out the demand on the basis of depot prices, the department is once again separately working out the demand for sales made at the factory gate. The contention is that even assuming the department to be right the higher depot price should include the element of depressed price at the factory gate. Therefore, it is argued that once full duty is charged taking the depot price as the basis, there is no need to charge duty once again on the factory gate sales as this would amount to double payment. The ld. S.D.R., however, had supported ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
