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TMI Blog2007 (2) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... p as well as limitation. 3.Even though issues other than limitation are involved and have been directed to be considered, during the hearing of the case, the appellant has submitted that the appeal may be decided on the ground of limitation only. Accordingly, we have heard both sides on the issue of limitation and are disposing of the appeals on that ground alone. 4.The duty demand raised in the show cause notice is for the period 1-9-85 to 13-9-89. The show cause notice was issued on 5-10-90. Thus, most of the demand is beyond the normal period of one year and has been raised by invoking the proviso to Section 11A of the Central Excise Act, 1944. We may read that proviso :- "Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, for the words (one year), the words "five years" were substituted". 5.The above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, specifically in the knowledge of the Excise Authorities from as early as October 1985 that processing is carried out by appellant S. Kumar Limited for its "sister concerns". It is also being pointed out that the dispute about control of the parties by S. Kumar Group was also in the knowledge of the department since it was reported that it is their headquarters at Bombay which decided job charges, accounting etc. 9.Another issue in dispute is the eligibility of discounts for deduction. On this, the learned counsel would point out that this issue was also under contemporaneous examination. Reference in this connection is being made to the letter dated 29-4-86 of the Office of Collector of Customs and Central Excise, Indore. The very first item in the letter alleged that "It is observed that you have not passed on the trade discount/additional discount to your sister concerns". So clarification was sought on this. Serial No. '3' raised another objection about the related issue of advertisement. It stated "it is also observed that you have collected the advertisement expenses from the wholesale dealers through your R D Section. So you are requested to supply the information as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is the Dealer who has undertaken to bear the advertisement expenses on his own accord and not at our instance. The dealer is reimbursing the expenses incurred on his behalf directly to M/s. S. Kumar Research Development Pvt. Ltd. It is very much incorrect to say that such expenses have been collected by us. All expenses incurred by us for advertisement or for Retailer incentives or for any other sales promotions have not been claimed by us as exemption from Excise. We would once again reiterate that no sales promotions expenses have been claimed as exemption for arriving at the sales price. Without prejudice to the above, it is submitted that the proper officer (Assistant Collector) has been approving out price lists under Rule 173C after verification with the invoices and all the evidence. Documents relating to approval of Price lists and finalization of assessment under Rule 173-I have been produced by us to the proper officer from time to time, and no such objection regarding trade discount has been raised by the proper officer or by any of the audit party auditing our unit. In the above circumstances, we submit that all the points raised by you in your letter refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee were all half truths and the appellant had devised a web of transactions and arrangements to evade payment of duty. It is being pointed out that S. Kumars Research Development Pvt. Ltd. was a partnership concern and it was created only to control the discounts and to collect it back. He would also point out that furnishing copies of agreement between the dealers and S. Kumar R D did not disclose facts truthfully as that agreement was only a device to take back discounts. According to revenue, only the October 1989 search operations and investigations brought out the real state of affairs and therefore, this was a case of suppression of facts with intend to evade payment of duty. 13.The duty demand is upon a finding that the transactions were among related parties and such prices cannot constitute assessable value and that certain deductions claimed towards discounts were not eligible for deduction while fixing assessable value. Since, the demand has been raised for the extended period by invoking the proviso to Section 11A, it is required to be seen whether the conditions laid down in that proviso exist in the case so as to permit reopening the assessments for a long per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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