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TMI Blog2017 (3) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... sessable value under Section 4 of Central Excise and Salt Act, 1944. As per the condition of the Notification, the retail price of the medicines which was claimed for concession should be specified in the DPCO 1979/1987. In the show cause notice, it was alleged that the appellant while claiming the discount of the price list have withheld vital information in as much as they have not submitted the documents showing the medicines has been specified in the DPCO 1987 and not declared at the footnote of the price list that the medicines figured in DPCO. Thus the appellant have not complied with the prescribed condition of the Notification No. 245/83, therefore not eligible for this discount. In the adjudication order, the Addl. Commissioner accepting with the allegations, denied the discount and confirmed the consequential duty demand of Rs. 49,81,952/- and also imposed the penalty of equal amount without quoting any statuary provision for penalty. Aggrieved by the said Order-in-Original dated 30-08-2004, the appellant filed an appeal before the Commissioner (Appeals), who rejected the appeal vide the impugned order, hence the appellant is before us. 3. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, however in the price list filed to the department, it was clearly mentioned that the MRP is as per the DPCO 1987, it shows that price declared in the price list is DPCO price. We find that the departmental authority have been approving the price list from time to time, despite knowing that, the appellant have shown DPCO prices in the price list and claimed the discount of 15% in terms of Notification No. 245/83. If at all the authority has any doubt regarding the DPCO price, nothing prevented the department to call for necessary documents before approval of the price list. In the notification, there is no condition that price list with reference DPCO 1987 is required to be submitted. We find that there is no suppression of the fact on the part of the appellant in as much as they have correctly declared all the details required in their price lists. Though the department is empowered to re-open the approval of price list, however the same can be done within one year or as the case may be five years depending on the facts whether there is any suppression of fact on the part of the appellant. 6.1 As per our above discussion, we do not find any suppression of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not produced the evidence of approval under DPCO in 1996 or anytime thereafter. The reason given by the appellant that the matter is old, does not hold much water. At the time when the notice was issued to the appellant, the matter was fresh, about two to five year old, therefore the claim that they are not able to produce the said Price List as the matter is old is without any basis. While there is no condition that the DPCO price list is to be submitted along with the price list under Central Excise Rules, however it is responsibility of the appellants to make correct claim in the Price List. If they have claimed that the prices are covered by the DPCO 1987 then they should be able to give evidence. The Section 106 of the Evidence Act states as follows 106. Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with traveling on a railway without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal is required to be allowed as held by Member (Judicial) or the same is required to be dismissed as held by Member (Technical). 9. The Registry is directed to put up the file before the Hon'ble President to resolve the issue, by reference to a third Member. (Pronounced in Court on 12.05.2016) (RAJU) Member (Technical) (Ramesh Nair) Member (Judicial) THIRD MEMBER ORDER ON DIFFERENCE OF OPINION Shri M P Baxi, Advocate for the appellant Shri S V Nair, Assistant Commissioner (AR) for the respondent Per: C J Mathew, Member (Technical) 10. In view of difference of opinion among the constituents of the Division Bench in appeal no. E/462/05-MUM and E/CO/200/05 of M/s Merind Ltd, I have been assigned with the task of deciding on the reference framed thus 'Whether the appeal is required to be allowed as held by Member (Judicial) or the same is to be dismissed as held by Member (Technical).' 11. The facts pertaining to the appeal do not bear narration again as these have been adequately elaborated by the Hon'ble Members in their respective orders; however, a few that have a criti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were within the ambit of the said price control order and which was suppressed when fulfilling requirements of rule 173B and 173C of Central Excise Rules, 1944. 15. The applicability of limitation is to be decided solely on the circumstances in which an assessee withholds material information despite being mandated or obliged to do so. 16. Appellant submits that the price lists furnished by them were filed in the format prescribed for such products as have prices fixed by law and that the declaration in the list were not required to be supported by any documentation. It is their contention that these price lists had been approved by the proper officer and any rectificatory proceedings would have had to be initiated within the period prescribed for it have legal sanctity. 17. It would appear that the claim of the appellant cannot be controverted. Approval of price lists is a statutory process and, with such approval, the declared price attains finality. Thereafter, the approved price list can be questioned only by a legal challenge. That has not occurred in the present instance. The notice, the order of original authority and the impugned order are bereft of any finding of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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