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TMI Blog2007 (10) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 2. The appellant is engaged in the job work of drawing and re-drawing of pipes and tubes falling under sub-heading No. 7304.10. Prior to 1997 Budget, the said goods were exempted from payment of Central Excise duty in as much as the same were not considered as manufacturing activity. However, with introduction of Chapter Note (3) to Chapter 73 in the Budget of 1997, drawing and re-drawing of pipes and tubes was held to be amounting to manufacturing activity. As a result, the appellant became liable to pay the duty. 3. The appellant filed the declaration from time to time, showing the value of clearance as that of job charges only. In as much as the job charges were less than Rs. 50 lakhs, they claimed the benefit of various small sca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were under bona fide belief that only the job charges value has to be reflected in the declaration. He submits that there is nothing on record to show that they have shown less value with an intent to evade the payment of duty. In fact, they were never advised by jurisdictional Central Excise officers to include the value of the raw material. Even after filing of declaration, they were never questioned by the range officer as to whether the value as reflected by them is inclusive or exclusive of value of the raw material. By drawing our attention to the various decisions, learned Advocate submits that "intent to evade duty" being one of the essential ingredients for invocation of proviso to Section 11A, has to be proved by the Revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise duty." 7. As is seen from the above, Commissioner has attributed intention to the appellant on the sole ground that they have filed declaration showing only job charges. This fact is not being disputed by the appellant. It is their contention that the job charges were being reflected under the bona fide belief and there was no intention on their part to evade the duty in as much as they would have been reimbursed with the duty by the principal manufacturer. We find, in an identical situation, Tribunal, in case of CCE, Hyderabad v. Decent Enterprises as reported in 2002 (147) E.L.T. 520 (Tri-Chennai), after taking note of the various decisions of Hon'ble Supreme Court has observed that in order to extend the larger period, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the proviso to Section 11A is in the nature of exception to the principal clause. Therefore, its exercise is hedged on one hand with existence of such situations as have been visualised by the proviso by using such strong expression as fraud, collusion etc. and on the other hand it should have been with intention to evade payment of duty. Both must concur to enable the Excise Officer to proceed under this proviso and invoke the exceptional power. Since the proviso extends the period of limitation from six months to five years it has to be construed strictly. The initial burden is on the Department to prove that the situations visualised by the proviso existed. But once the Department is able to bring on record material to show that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew the heavy cost of the pipes. The goods were exempted till 1997 when they were made liable to duty for the first time. As such, it can be presumed that the assessee was not aware of the Central Excise law and was required to be guided properly by their Central Excise authority, who also did not take any steps to verify the correctness of the declaration. As observed by Tribunal in case of Decent Enterprises referred supra, the duty cleared to be paid by the job workers was reimbursable to him by the principal manufacturer. As such, there cannot be any mala fide intention on the part of the appellant to evade duty. Accordingly, we hold that major part of the demand is barred by limitation and no penalties are required to be imposed. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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