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TMI Blog1994 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... the computers including therein the value of bought out peripherals. In June, 1984, by letter dated 28-1-1984, the applicants told the Superintendent of Central Excise that they had included the value of peripherals by mistake and filed a fresh classification list and also sought clarification in the matter. They wanted to show the value of computers comprising only of the essential and integral parts. The Superintendent (Central Excise) on 31-1-1984 replied stating that his office had not advised about the payment of duty. On 3-3-1984, they filed the price list for computers excluding the cost of bought out peripherals which was duly approved on 14-3-1984 without modification. On 10-7-1984, the Superintendent issued a show cause notice under Section 11A demanding Rs. 6,45,899.00 on the peripherals cleared without following the Central Excise procedures and payment of duty for the period 1-3-1984 to 18-5-1984. On 13-12-1984 another show cause notice was issued demanding duty on peripherals for the period 13-5-1984 to 30-11-1984. On 7-3-1985 an addendum was issued seeking to amend show cause notice of 10-7-1984 and the ld. Counsel contended that by this addendum a whole new case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, he cannot assume jurisdiction. The ld. Counsel cited the case of S. Kannan Others v. Secretary, K.S.R.T. Authority - AIR 1993 S.C. 1065. Therefore, it was argued that all the show cause notices and the two addenda are beyond limitation and the demand is illegal. The ld. Counsel cited the Supreme Court decision in the case of Padmini Products v. Collector of Central Excise - 1989 (43) E.L.T. 195 (S.C.) and urged that the assessee cannot be charged with suppression where there is doubt and the longer period cannot be invoked to demand duty. The ld. Counsel also relied upon the Stay Order No. 142 143/92-D, dated 20-7-1992 in the case of J.K. Synthetics v. Collector of Central Excise where the Tribunal had followed the Chemphar Drugs Liniments decision of the Supreme Court reported in 1989 (40) E.L.T. 276 to grant stay. The ld. Counsel submitted that the peripherals are supplied only at the request of customers and they are only tested peripherals before the supply because these pheripherals are already compatibles with their computers. Therefore, there was no justification in demanding duty from the applicants on these peripherals. Another argument put forth by the ld. Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ld. D.R. contended that the Collector is empowered as a superior officer to adjudicate the matter even it falls within the Assistant Collector s powers for which he relied upon the case law reported in 1989 (40) E.L.T. 401 (Tribunal) = 1989 (23) ECR 100 (Cegat SB-A) in the case of M/s. ORG. Systems v. Collector of Central Excise, Baroda and another decision of the Tribunal in the case of M/s. D.C.W. Limited v. Collector of Central Excise, Madurai - 1988 (35) E.L.T. 167 (T) = 1988 (16) ECR 277. This is made possible by the provisions of Rule 6 of the Central Excise Rules which gives the power to the Collector to discharge the function of officers subordinate to him. The ld. D.R. also argued that the legal provisions and the facts of the present case, as above, are totally different and distinguishable from the case of K.S.R.T. Authority cited by the applicants. There is also a finding by the Collector in para 11 of his order that the customers had placed orders for complete computer system on the applicants, which was supplied. The ld. D.R. also submitted that the onus of giving the correct declaration in the price list is on the assessee and non-disclosure of all the particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al on 29-12-1993. Notices of hearing on 18-1-1994 were issued listing the matter for 3-2-1994. On mentioning the matter on 3rd February, 1994, on the request of the ld. Advocate, Sh. Jitender Singh, the matter was listed on 4-2-1994. On 4-2-1994, the matter was transferred to Special Bench `A , the issue in appeal being only of classification. Notices of hearing were issued listing the matter for 21-3-1994. The applicants made a miscellaneous application before the Tribunal dated 1-3-1994 saying that there is a High Court direction to dispose of the matter within two months and for early hearing of the stay application. Accordingly, the Bench passed an order dated 2-3-1994 ordering the listing of the stay application on 9-3-1994 instead of 21-3-1994. On 9-3-1994, the new counsel came on record, namely, Ms. Amrita Mitra, who made an application on that day before the Bench saying that sometime will be required since the Counsel was engaged in the matter only on that day and also undertaking to get extension of time from the High Court for disposal of the appeal. Accordingly the matter was adjourned to 11-3-1994. 6. On the question whether the cost of peripherals is includible or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the remedy of the Appeal to the Supreme Court is not efficacious. It was also brought to my notice that the decision rendered by the Appellate Tribunal in Sunray s case is pending before the Supreme Court. It is, therefore, clear that on merits on the question of valuation the prima-facie case is in favour of revenue and not the applicants. 8. It has also been argued that the Addenda issued to the two show cause notices seek to set up a new case different from that set out in original show cause notices. It is submitted that the show cause notices issued sought to recover duty on peripherals whereas the Addenda to the show cause notices show to include the cost of peripherals in the assessable value of computers. We find that the applicants had been licensed as manufacturers of computers and not of peripherals. The applicants were themselves including the value of peripherals in the assessable value declared for computers in their price list at one stage. The Addenda to the show cause notice prima facie make the case of the Department explicit that it relates to determination of assessable value under Sec. 4 of Central Excises Salt Act, 1944 in respect of computers cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making the pre-deposit. In the circumstances, we hold that for the purpose of hearing the appeal on merits, the balance of convenience will be to direct that on condition of the applicants herein depositing Rs. 30 lakh (Rupees thirty lakh) only in cash on or before 30-4-1994, the pre-deposit of balance of duty and penalty is dispensed with and its recovery stayed. We also note that Hon ble High Court had directed the disposal of the appeal within a time frame which due to circumstances in this case subsequent to the Court s order, it does not appear to be possible of being achieved. As has been held by the Supreme Court in the case of Vijay Prakash D. Mehta v. Collector of Customs - 1989 (39) E.L.T. 178 (SC) = 1988 (18) ECR 369 (SC) the right to appeal is neither an absolute right nor an ingredient of natural justice. It must be conferred by the statute and can be exercised only as permitted by the statute. It is, the Supreme Court held, a conditional right governed by the condition of pre-deposit before it can be heard. The applicants have also undertaken to seek extension of time from the Hon ble High Court. However, we may observe that as soon as the applicants report compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the President to refer it to a third Member to resolve the issue in accordance with law. The following point is required to be considered by the third member :- In the facts and circumstances of the case whether applicants are required to deposit Rs. 30 lakh for the purpose of hearing the appeal as directed by Member (Technical) or to hear the appeal at the earliest possible date without insisting pre-deposit as proposed by the Member (Judicial). Sd/- (G.A. Brahma Deva) Member (J) Sd/- (K.S. Venkataramani) Member (T) 13. [Order per : Harish Chander, President, agreeing with Member (T)]. - I have perused the orders written by learned brothers, Shri K.S. Venkataramani, Member Technical and Shri G.A. Brahma Deva, Member Judicial. The following point of difference has been referred to me :- In the facts and circumstances of the case whether applicants are required to deposit Rs. 30 lakhs for the purpose of hearing the appeal as directed by Member (Technical) or to hear the appeal at the earliest possible date without insisting pre-deposit as proposed by the Member Judicial. 14. Miss Amrita Mitra, the learned advocate is present on behalf of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r :- (i) Winchester Disk drive (ii) Printers (iii) VDU (Visual Display Unit) (iv) Floppy drive disc. (v) VDU terminal (vi) Streamer tape disc. (vii) Removable Disc drive (viii) Data Entry System. She pleaded that the matter is fully covered by earlier decisions of the Tribunal against the appellant. In support of her argument, she cited the following decisions :- (1) 1994 (73) E.L.T. 450 (Tribunal) - O.R.G. Systems v. Collector of Central Excise, Vadodara (2) 1994 (73) E.L.T. 96 (Tribunal) - Tata Unisys Ltd. v. C.C.E., Bombay 16. In reply, Miss Amrita Mitra, the learned, advocate pleaded that in the addendum the basis of charge cannot be changed. Shri Dushyant Dave, the learned advocate pleaded that the first show cause notice appears on page 170 of the paper book and the addendum to the show cause notice appears on page 187 of the paper book. The second show cause notice dated 13th December, 1984 appears on page 180 of the paper book and addendum appears on page 205 of the paper book. The third show cause notice dated 22nd May, 1985 appears on page 222 of the paper book and no larger period has been invoked. He referred to the letter dated 7th October, 1987 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd she further argued that the show cause notice is not invalid merely by citation of incorrect rule. She referred to another decision in the case of Collector of C. Excise v. Uma Laminated Products (P) Ltd., reported in 1984 (17) E.L.T. 187 (Tri.) wherein it was held as under : The corrigendum was meant to correct the name of the respondent wrongly shown as Uma Laminated Jute Products instead of `Uma Laminated Products . Address, however in either of them was correct. Corrections were also sought in other minor mistakes as well but which did not materially alter the particular set out in the show cause notice. These errors were avoidable ones but they are not such as to vitiate the very validity and legality of the show cause notice. For the same reason, proceedings too were not vitiated as the issue of the show cause notice is the starting point for initiating the same. Accordingly, the show cause notice and proceedings were valid and within time irrespective of the corrigendum having been issued much later than the period of limitation. Lastly, she referred to a decision in the case of Western Bengal Coal Fields Ltd. v. Collector of Central Excise, Bombay, reported in 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 1984 is dated 13th March, 1985. The details of the show cause notices are given as under : Sl. No. Date of show cause notice Period 1. 10th July, 1984 1st March, 1984 to 18th May, 1984 2. 13th December, 1984 30-5-1984 to 30-11-1984 3. 22nd May, 1985 1-12-1984 to 17-3-1985 A perusal of the above chart shows that the first show cause notice dated 10th July, 1984 was within limitation. The second show cause notice dated 13th December, 1984 was also within limitation and the third show cause notice dated 22nd May, 1985 was also within limitation and it was not necessary that the same should have been issued by the Collector as proviso was not invoked. Thereafter, the addendums were issued. The main argument of the appellant is on merits as well as on the limitation aspects . I would like to observe that the mater is fully covered against the appellant in the following decisions : 1994 (73) E.L.T. 86 - Tata Unisys Ltd. v. C.C.E. Bombay; 1994 (73) E.L.T. 450 (Tribunal) - O.R.G. Systems v. C.C.E., Vadodara The Tribunal had followed its earlier decisions in the case of Collector of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Single Judge. Therefore, no further directions are required to be passed in this appeal. As that one month is already over we extend that period also by another two months from today to dispose of the appeal finally filed by the appellant. In the meantime, the question of pre-deposit shall be considered at the earliest after hearing the parties. it would be open to the appellant to request the Tribunal for further stay against recovery proceedings if its pre-deposit application is not decided within the time indicated hereinabove and if such request is made by the appellant, the Tribunal shall consider the same after hearing all counsel. A perusal of the order passed by the Hon ble Karnataka High Court clearly shows that it was left open to the Tribunal to consider the question of pre-deposit as expeditiously as possible. In view of the above discussion, I agree with the view expressed by Shri K.S. Venkataramani, Member Technical. Registry is directed to place the matter before the regular Bench for passing the final order in accordance with law and the point of difference is answered accordingly. Dated : 16-11-1994 Sd/- (Harish Chander) President ..... X X X X Extracts X X X X X X X X Extracts X X X X
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