9911796707
TMI Blog1997 (1) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the appellants took us through the order in original and also referred to the show cause notice. He has the following two pleas to make in this regard : 1. Some of the goods which were returned and which have alleged to have been replaced were in fact repaired and returned. 2. Longer period of limitation could not have been invoked. 2. In regard to the first plea he has referred us to the finding of the learned lower authority wherein, he has pleaded, the appellants had taken a plea which has been taken note of by the lower authority that some of the goods which had been returned by the customers under Rule 57F(2) F(3) and Rule 173H of the Central Excise Rules, 1944 were repaired and returned to their customers. He has ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods received, they had mentioned `despatched for the purpose of closing the entries. To a specific query from the bench, as to how the department can be taken to have been informed about the scrapping of the returned parts and replacement of the same and non payment of duty in respect of the goods, which were sent out as replacements and how it can be taken that the appellants had informed the authorities, he has pleaded that the appellants action was bona fide in nature. He has further urged that as it is the learned Collector has not entered any specific finding for invoking the longer period of limitation. In this connection he was asked whether the plea regarding suppression and invokation of longer period of limitation was ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorrect to suggest that there has been any deliberate attempt on our part to evade duty as is being alleged in SCN. In the light of paras (15) (16) above, neither proviso to Section 11A(1) of CESA 44 nor penalty under Rule 173Q of Central Excise Rules, 1944 will be attracted. He has pleaded that the learned lower authority should have entered finding in regard to their pleas made in reply to the show cause notice and for reason of his failure to do so, the lower authority s order is vitiated and cannot be considered as a proper order. 3. Shri S. Murugandi, the learned DR for the department has pleaded that the issue for consideration is whether the appellant had informed the authorities or have come on record in regard to scrapping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents without payment of duty and there is no rebuttal thereto and therefore longer period of limitation has been rightly invoked. 4. We have considered the pleas made by both the sides. We observe that demand has been made in respect of the goods which were sent out as replacements from the appellants factory in lieu of the goods which are returned to the appellants by their customers in terms of Rules 57F(2) and (3) and 173H. The issue to be considered is in regard to the replacement which are sent out without payment of duty. Before the lower authority, the appellants have admitted as set out in para 29 of the impugned order that the rectification possibilities were remote in all the items other than fly-wheel magnetos and therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies which had been sent out as replacement. The appellants have not come on record in regard to the scrapping done and in terms of Rules 57F(2) and (3) and 173H, the appellants are supposed to maintain record in regard to the entry of the goods which were received back and thereafter return of the same. The appellants against the different entries showed `despatched i.e. the goods after repairs etc. had been sent out. In fact what they sent out were replacements for the goods scrapped. The entry `despatched made was therefore to mislead the authorities into believing that the goods received for repairs etc. had been sent back after repairs etc. The appellants showed in their records that the goods as received were despatched outside the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
