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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 ..... 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. There is no suppression of fact, therefore it was only normal period of one year available to the department to re-open the approval of price list which the department failed to do so and therefore entire demand raised for the extended period is time barred. Appeal allowed - decided in favor of appellant. - E/462/05-MUM - A/85700-85700A/17/EB - Dated:- 3-2-2017 - Mr. Ramesh Nair, Member (Judicial) and Mr. Raju, Member (Technical) Shri M. P. Baxi, Advocate for the Appellant Shri H. M. Dixit, AC (AR) for the Respondent ORDER Per : Ramesh Nair The appeal is directed against Order-in-Appeal No. AT/M-III/153/2004 dated 05-01-2005 passed by the Commissioner of Central Excise (Appeals), Mumbai Zone-II, wherein the Ld. Commissioner upholding the Order-in-Original No. 02/MM/2004-05 dated 30-08-2004 rejected the appeal of the appellant. 2. The fact of the case is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was issued after the normal period on limitation is time bar. He further submits that Ld. Commissioner has placed reliance on the judgment of Easland Combines vs. Collector of C.Ex., Coimbatore 2003 (152) ELT 39 (S.C.) on the issue of re-opening of the approval of price list. He submits that the said judgment is not applicable when demand is raised for extended period without availability of any ingredient of proviso to Section 11A. He submits that rather the said judgment is supporting the appellant. On query from the bench regarding the price list submitted to the Drug Authority as specified under DPCO 1987. He fairly submits that being very old case, the said documents could not be traced out, hence unable to submit. 4. On the other hand Shri H.M. Dixit, Ld. Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that as per the Notification No. 245/83, discount of 15% can only be allowed if the MRP is specified in the price list referred to in the DPCO 1987. The appellant have not shown at any stage that the maximum retail price declared in the price list submitted to the department is specified in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the appellant. 6.2 In view of our above discussion, we find that the demand is not sustainable being time barred. The impugned order is set aside and the appeal is allowed. (Order pronounced in court on ..) Raju Member (Technical) Ramesh Nair Member (Judicial) Per : Raju Member (Technical) 7.1 After having gone through the order proposed by the learned Brother, I proceed to record a separate order. As already formulated by learned Brother, the only legal issue involved in the present appeal is as to whether extended period of limitation can be invoked in the circumstances of this case. I find that appellant had claimed the benefit of Notification 245/83 dated 13.9.83 in the pricelist filed by them under Central Excise rules by claiming that the prices of their products are covered under DPCO 1987. As recorded by the learned brother in para 3 of his order, the learned counsel of the appellant had claimed that they had categorically declared in the price list filed under Central Excise Law that retail price is fixed under DPCO, 1987 and from such retail price 15% discount was claimed in terms of notification 245/83. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of approval of Price List under Central Excise Law. Approval of price list by Central Excise authorities is subject to the truthfulness of the declaration contained therein. In the era of self removal procedure, the revenue places great reliance on the declarations made in the documents. The declarations are taken at face value. In the instant case, the appellants had in their price list under Central Excise Law, had claimed that the price of their products are covered by DPCO 1987. Hon Supreme Court in the case of AAFLOAT TEXTILES (I) P. LTD. (2009 (235) E.L.T. 587 (S.C.)) observed as follows 17 . In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord Denning observed at pages 712 713, No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity, (page 722). In the instant case it appears a wrong claim has been made with intent to avail undue benefit and it amounts to fraud. In such a situation approval of price list under Central Excise Law cannot come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for resolving the difference of opinion, I am mindful of the scope of the reference which is no less than having to either allow the appeal or dismiss the appeal. The Hon ble Member (Judicial), having rendered the finding that lower authorities have ordered recovery of duty beyond the period of limitation of six months and that the extended period is not liable to be invoked as the ingredients for doing so are not evidenced to be present in the circumstances of the case, did not have to render an opinion on the eligibility to avail the said exemption notification. The Hon ble Member (Technical), not having concurred with the finding on applicability of limitation of time, has proceeded to examine the merits of the case against the appellant and concluded that appellant had wrongly availed the exemption notification. In the event of a decision that the notice had not erred in extending the period for which differential duty was sought to be recovered, the palpable absence of difference of opinion on eligibility for exemption cannot be arrogated to be within the scope of the current reference. Be that as it may, it requires me to address the issue of limitation in the notice issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1944 and that some misdeclaration had been perpetrated when such information had been called for. 19. The impugned order and the order-in-original appear to entertain some misunderstanding of the said exemption notification. Such confusion may be tolerable in the notice. At the time of issue of notice, MRP-based assessment was not even a twinkle in the eye. However, these were familiar features in administration of excise duty by time that the order of original authority was passed. The Drugs (Prices Control) Order, 1987 required declaration of maximum retail price and rule 173C of Central Excise Rules, 1944 prescribed that such prices be the basis for assessment of duty. Not unnaturally, the list price does not conform to normal price which alone determines the basis for taxing manufacture as an activity. Hence, abatements were a constitutional imperative to bring the list price in conformity with the normal price and the said notification merely provides for such abatement. Notification no. 245/83-CE is not a privilege but a necessary appendage of the prescription in rule 173C that list price under Drugs (Prices Control) Order, 1987 must be declared. It must necess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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