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TMI Blog2009 (9) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... e set aside and the order passed by the lower authority is to be restored, appeal is accordingly disposed of - E/6140/2004 - 416/2011-EX(PB) - Dated:- 9-9-2009 - Justice R.M.S. Khandeparkar, Shri M. Veeraiyan, JJ. REPRESENTED BY : Shri K.P. Singh, DR, for the Appellant. Shri Hemant Bajaj, Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Heard the learned DR for the appellant and learned Advocate for the respondents. Perused the records. 2. This appeal arises from the order dated 16th July, 2004 passed by the Commissioner (Appeals), Indore. By the impugned order, the Commissioner (Appeals) has allowed the appeal filed by the respondents against the, order of the adjudicating authority passed on 31st July, 2003. By the said order, the adjudicating authority had confirmed the demand of excise duty amounting to Rs. 93,093/- under Section 11-A of the Central Excise Act, 1944 and imposed penalty of the equal amount under Section 11-AC of the said Act and further penalty of Rs. 10,000/- under Section 173-Q. The respondents aggrieved by the said order had sought to challenge the order on the point of bar of imitation. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for the adjudicating authority to allow the Department to invoke extended period of limitation and the same having been correctly appreciated by the Commissioner (Appeals) under the impugned order, there is no case for interference therein. 5. The perusal of the order passed by the adjudicating authority in the matter in hand discloses that there was no dispute between the parties that the provisions of Rule 6 of the Central Excise (Valuation) Rules, 1975 were clearly attracted in the matter in hand and the authority had correctly determined the value of the product in question. In fact, there are clear findings to that effect. The order of the adjudicating authority further discloses a clear finding to the effect that, since neither the declaration, as required under Rule 173-C, has been filed nor at any point of time it has been informed to the, Department that they are undervaluing their goods i.e. physician s samples by paying duty much below the value of similar goods which were being removed by the noticee, therefore, they have rendered themselves liable for penalty under Section 11-AC . This finding clearly discloses failure on the part of the respondents to submit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om such sales over and above what has been declared. Sub-section (3) provides that; the proper officer, duty empowered by the Central Government under Section 14 of the Act, may, where he considers it necessary during the course of any enquiry in connection with the declaration made in the documents referred to in sub-rule (1) by an assessee require any person to produce or deliver any document or his thing relevant, to the enquiry and examine any person acquainted with the facts and circumstances of the particulars declared in such documents or other records, in the manner provided in Section 14 of the Act. Sub-section (3A) provides that, the assessee shall declare to the proper officer his marketing pattern, discount structure and such other particulars in such form and in such manner and at such intervals as the Central Board of Excise and Customs or Commissioner of Central Excise may require. Sub-section (4) provides that, the proper officer may after such further enquiry as he may consider, reassess following the provisions of Section 11A of the Act and the assessee shall pay the deficiency, if any. 7. Apparently, Rule 173-C though carries the title as procedure regarding v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st time under this Notification and thereafter before the 15th day of April of each financial year. As found by the forums below, including CEGAT, factually, the declaration and the undertaking were not submitted by the appellants. This is not an empty formality. It is the foundation for availing the benefits under the Notification. It cannot be said that they are mere procedural requirements, with no consequences attached for non-observance. The consequences are denial of benefits under the Notification For availing benefits under an exemption Notification, the conditions have to be strictly complied with. 10. Bearing in mind the provisions of Rule 173-C and the certain obligations cast upon the assessee in order to enable him avail certain benefits, the same are required to be strictly complied with and failure thereof can result in denial of those benefits. 11. Apart from denial of benefits, it could also result in non-disclosure of the relevant facts to the Department. As already seen above, the assessee while making declaration in terms of Rule 173-C is required to impart certain information to the Department. The information which is required to be imparted is not only r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o invoke the provisions of law relating to the extended period of limitation. 15. The Bombay High Court s decision in the case of Swastik Auto Products (supra) was based on the decision of the Supreme Court in the case of Pushpam Pharmaceuticals Company (supra). As already held above, the decision in Pushpam Pharmaceuticals Company s case (supra) is of no help to the respondents and for the same reason, the decision of the Bombay High Court is also of no help to the respondents. 16. It was also sought to be contended that, prior to 1996 the respondents were clearing the physician s samples for the purpose of free distribution and it was. known to the Department. When we speak of knowledge, it is not merely knowledge in abstract. It has to be in relation to the facts of the case. The period in question, in the matter in hand, relates to from October, 1997 to May, 2000. Merely because some Officers of the Department who were incharge of the matter prior to 1996 might have had knowledge of certain activities of the assessee. From that, it would be difficult to draw an inference about the knowledge to the Department of all the activities of the assessee even in relation to the subs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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