9911796707
TMI Blog1995 (1) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... /83-C.E., dated 1-3-1983 during the period 1983-84 (November 1983 to March 1984) on submission of the necessary declaration. During the financial year 1984-85 they submitted the Classification List claiming the benefit of exemption as available under the Notification No. 83/83-C.E., dated 1-3-1983 as amended and specifically declared that their clearance value during the year 1984-85 would be Rupees 22 lakhs. They continued to avail exemption under the said Notification during the year 1984-85. On verification of the RT 12 returns for the period from April 1984 to December 1984 it was found that aggregate value of clearance of their product was more than the exemption limit provided under Notification No. 83/83-C.E., dated 1-3-1983 as amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the year 1984-85 but demand was clearly barred by time since there was no allegation of suppression in the show cause notice nor they suppressed any facts. Under the bona fide belief declaration was given in terms of Notification that it would not exceed exemption limit but it crossed Rs. 25 lakhs limit which was not known at the time of filing declaration. Further the appellants have started paying excise duty at the prevalent rate on clearance after 27-12-1984. Since RT 12 returns were duly filed and the factual position was within the knowledge of the department, it cannot be said that appellants have suppressed the facts and, accordingly, larger period cannot be invoked. They contended that show cause notice not having alleged supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n January, 1985 it cannot be said that demand was barred by time since show cause notice was issued on 14-2-1985. This position has also been considered by the Tribunal in the case of Techno Pack Ltd. v. Collector of Central Excise, reported in 1993 (65) E.L.T. 286 (Tribunal) wherein it was held that limitation of six months is not applicable when the assessment was provisional and assessment continues to be provisional till clearance exceeds exemption limit. 5. On a careful consideration of the arguments advanced on both sides, we find that there is strong force in the argument advanced by the learned Departmental Representative. We are not convinced with the argument advanced on behalf of the appellants that Section 11A does not spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the appellants have filed declaration declaring therein that their clearances are not likely to exceed exemption limit but as can be seen from the records it exceeded the exemption limit in December, 1984. Hence it continues to be a provisional assessment till the end of December, 1984 and taking into consideration of the facts and circumstances of the case, the demand was not barred by time in this case since show cause notice dated 14-2-1985 was well in time. Accordingly, we hold that demand is not barred by time. In the view, we have taker, the appeal filed by the party is hereby dismissed. Cross Objections are also disposed of accordingly. 6. Operative portion of this order was already pronounced in the open court on the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while paragraph 3(a) requires a declaration about the clearances not likely to exceed Rs. 25 Lacs and is therefore anticipatory and tentative in character, it is Clause 3(b) which allows the benefit only if such clearances during the financial year do not exceed Rs. 25 Lacs. This determination is possible only at the earliest on the date on which the assessee informs or the department otherwise comes to know that the clearances have been exceeded; (And once they have been so exceeded Clause 4 comes into picture). 10. Therefore the assessment can be finalised only either at the end of the financial year if no information regarding exceeding the limit has been received in the meanwhile or earliest on the date on which RT 12 return show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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