9911796707
TMI Blog2014 (8) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... e marketing division of the appellants started functioning in the year April, 2010 in order to cater to the needs of their customers who procured the Bull Dozers, Shovels, Excavators, Loaders and other equipments from their KGF (Manufacturing) Unit. Based on the requirement of their customers the appellants procure the spare parts either locally or through import. The spare parts are cleared either directly to the customers based on the purchase orders or stock transferred to the Regional Offices of the appellants for supply to the customers based on their requirements. The value adopted for sale of spare parts from the Marketing Division of the appellants is based on the price list available/generated in the ERP system and no separate pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 2011 by the Finance Act 2011, the activity of repacking/relabelling amounted to manufacture. The submission of the appellant is that the show-cause notice could not have been issued beyond the period prescribed under Section 11A and no suppression of fact could have been invoked. This is because while the parts became liable to duty on the basis of MRP, the activity of repacking/relabelling did not become manufacture at the same time and retrospective amendment was brought about for this purpose. Even though retrospective amendment was brought about in the year 2011 itself, the department has issued the show-cause notice beyond the normal period. The learned counsel relies upon the decision in the case of J.K. Spinning and Weaving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rules 9 and 49 having been made retrospective from the date of the Rules were framed, that is, from February 28, 1944, the appellants and others similarly situated may be called upon to pay enormous amounts of the duty in respect of intermediate goods which have come into existence and again consumed in the integrated process of manufacture of another commodity. There can be no doubt that if one has to pay duty with retrospective effect from 1944, it would really cause great hardship but, in our opinion, in view of Section 11A of the Act, there is no cause for such apprehension. Section 11A(1) of the Act provides as follows:- Section 11A - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject to the provision of Section 11A of the Act. We are unable to accept the contention of the learned Attorney General that as Section 51 has made the amendments retrospective in operation since February 28, 1944, it should be held that it overrides the provision of Section 11A. If the intention of the Legislature was to nullify the effect of Section 11A, in that case, the Legislature would have specifically provided for the same. Section 51 does not contain any non-obstante clause, nor does it refer to the provision of Section 11A. In the circumstances, it is difficult to hold that Section 51 overrides the provision of Section 11A. 32. It is, however, contended by the learned Attorney ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciate the ground of such challenge, we may once more refer to Section 51 of the Finance Act, 1982. The Explanation to Section 51 provides as follows:- Explanation - For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. Under the Explanation, although Rules 9 and 49 have been given retrospective effect, an act or omission which was not punishable before the amendment of the Rules, will not be punishable after amendment. The Explanation does not, however, provide for the penalties and confiscation of goods. It is the contention of the appellants that as the appellants had not comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of Rules 9 and 49, founded on the provision of the Explanation to Section 51 of the Finance Act, 1982, is without any substance and is rejected. 5. We find that as per the above decision, the demand has to be within the period prescribed under Section 11A. In this case it cannot be said that appellants had suppressed the facts or deliberately mis-declared to evade payment of duty and in our opinion no case has been made out for invoking extended period. In the absence of case for invoking extended period, the demand for the period beyond the normal period of limitation cannot be sustained. Since the issue falls within a narrow compass and the issue is no longer res integra, we do not consider it appropriate to postpone the matter for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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