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TMI Blog1998 (3) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... Oil Cakes, Groundnut Seed and Oil Cakes and Rapeseed seed and Oil Cakes and produce therefrom solvent extracted raw oil with the aid of power in their plant at Dewas. They are holder of L 6 licence. During the period 1-1-1984 to 31-12-1984, the appellants had produced various quantities of soyabean oil, linseed oil, groundnut oil and rapeseed oil through the process of solvent extraction. In respect of the aforesaid period, the appellants had filed the returns in the prescribed proforma under Rule 4 of the Vegetable Oil Cess Rules, 1983 showing the amounts of oil produced and removed from the appellants factory. This fact could be verified by the department from its records. In addition, the appellants were maintaining statutory record of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n upheld by the Hon ble Supreme Court. 6. It was, however, their contention that the validity of the Vegetable Oil Cess Act, 1983, had been challenged before the Hon ble Supreme Court by a number of petitions, including that of the appellants, being W.P. No. 171/88. The Hon ble Supreme Court in its judgment in the case of B.K. Industries Others v. Union of India reported in 1993 (65) E.L.T. 465 (S.C.), while rejecting the claim and upholding the validity of levy and validity of cess till 31-3-1987, had observed as under :- .......... additional contention that the goods concerned herein cannot be called, vegetable oil" within the meaning of Section 3 of the Cess Act and therefore, the levy of cess is incompetent. We cannot, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1983. This is clearly contrary to the records of the department inasmuch as the appellants had filed the returns under the Cess Act of 1983 for the period in question, namely, 1-1-1984 to 31-12-1984 which showed the products and quotations cleared. In addition, the appellants had also maintained the record of production during the period in question in the form of RG 16 register which was periodically inspected by the officers of the Excise department. The appellants had also filed RT 12 returns for the relevant period. As such, there was no suppression of any fact, much less of wilful suppression and, therefore, the basis for invoking the extended period of limitation under the proviso to Section 11A is incorrect and, consequently, the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading and the department was aware of the same. The appellants had not paid the duty not with a view to evade payment thereof, but in the aforesaid circumstances. 12. Learned DR drew attention towards the department s view as contained in the order-in-original and reiterated the same. He emphasised that the validity of the Cess Act has been upheld by the Hon ble Supreme Court and this was required to be kept in view. 13. We have considered the above submissions. We observe that the learned Counsel is correct in pointing out that Hon ble Supreme Court had left the question relating to the determination as to whether the product of the appellants can be called vegetable oil within the meaning of Section 3 of the Cess Act open. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter is required to be re-considered by the authorities in respect of all other aspects as it is necessary on their part to first record a finding with reference to the question left open by the Hon ble Supreme Court for consideration by the appropriate authority and also refer to case law relating to pre-levy stock and oil produced by various methods including solvent extraction process from seeds or oil cakes and pass a speaking order after giving an opportunity to the appellants to be heard in the matter in accordance with the principles of natural justice. The impugned order is, therefore, set aside the matter remanded for de novo consideration in the light of above observations and the law, as already announced in the open Court. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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