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TMI Blog2019 (12) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... tiated by the show cause notice - it is considered appropriate to set aside the impugned order and matter remanded back to the original authority for a fresh decision on this sole aspect after granting an opportunity to the appellant to be heard on all the submissions. Appeal allowed by way of remand. - Excise Appeal No: 86805 of 2015 - A/87045/2019 - Dated:- 8-11-2019 - HON BLE MR C J MATHEW, MEMBER (TECHNICAL) AND HON BLE DR SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Rohan P Shah, Sr Advocate with Shri Arihant Tater, Chartered Accountant, And Ms Mitika Baghel, Advocate for the appellant Shri RK Dwivedi, Additional Commissioner (AR) for the respondent ORDER PER: C J MATHEW Though in this challenge of M/s Morde Foods Pvt Ltd to order-in-original no. PUN-EXCUS-002-PR.COM-004-15-16 dated 16th June 2015 of Principal Commissioner of Central Excise, Pune-II, the grounds of appeal exhaustively plead that the impugned order has erred on determining higher duty liability, that computation itself is erroneous and that the imposition of penalty is improper, the submissions of Learned Counsel ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling price from 12th September 2013, it is also contended that circular no. 625/16/2002-CX dated 28th February 2002 of Central Board of Excise Customs would give impression that assessment under section 4A of Central Excise Act, 1944 was not warranted. It was pointed out that, even though the packages kept at the premises of the distributors were available for inspection, the statutory authorities, under the Legal Metrology Act, 2011, did not consider such to be a violation and, therefore, it would appear that requirement of retail selling price was not mandated. For this, he made elaborate submissions by reference to provisions of Legal Metrology Rules, 2011 and the intent which is implicit in the rule 2(k) therein. 4. According to Learned Counsel, there have been different interpretations placed by different High Courts which could justifiably have confused the appellant on the applicability of the relevant provisions of Central Excise Act, 1944. He drew attention to the decision of the Hon ble High Court of Bombay in Larsen Toubro Ltd v. Union of India [2012 (275) ELT 153 (Bom)] that 15. The petitioners submission is that the packaged g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and industrial as set out therein and as already explained. The petitioners however, want this Court to accept the submission that apart from industrial and institutional consumers as excluded by explanation to Rule 2A, there are also other consumers both industrial or institutional who if they buy retail packages from the retail dealer as in the instant case from their stockists, if they are not ultimate consumers, to them also Chapter 3 would not apply. and if the Hon ble High Court of Karnataka in EW AC Alloys Limited v. Union of India [2012 (275) ELT 193 (Kar)], with particular reference to 30. Therefore, a harmonious reading of these provisions, keeping in mind the object with which the Act is passed, it is reasonable to arrive at the conclusion that the meaning assigned to industrial consumer and institutional consumer in the explanation 2-A cannot be attributed to the meaning of those consumers in proviso to Rule 2(p). Rule 2(p) and Rule 2-A operate in distinct and separate fields. Therefore, the object is very clear. This Act is meant only for an individual consumer or a group of individuals who purchase packaged commodities from a retail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, if they were sold by numbers and displayed for sale by the stockists and retailers. The appellants agreements with the stockists required the latter to display these goods for sale and the stockists have also confirmed this fact in their statements given before the investigating authorities. There is also no dispute that the appellants goods are sold by numbers. Thus to circumvent the law, the appellants resorted to mis-declarations, which clearly reveals their guilty mind. Thus the charge of suppression of facts and wilfull mis-statement of facts with an intent to evade excise duty is writ large and established beyond doubt. In such circumstances, invocation of extended period of time for demand of duty is completely justified and I agree with the findings of the ld. Member (Technical) in this regard. Learned Authorised Representative submits that the declaration on the packages, demonstrating intent to suppress the actual targeted market, should warrant the consequence. Further, according to him, the instructions pertaining to filing of returns under the different types of clearances required separate indication and the failure to do so cannot be attributed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l prevailing and, therefore, they could not deposit the tax for the period April-June, 2001. We may even say that this would, in a way, amount to not complying with the spirit of High Court s Order. It is a different matter that the Banking service was introduced from 1-7-2001, which covered under its ambit the various financial services rendered by the appellant. But the question remains why the appellant after pursuing with the High Court which ordered the CBEC to issue a Circular which was done, chose not to pay service tax under the category of Management Consultancy Service for the period April-June, 2000. The answer of the ld. Counsel is that the despite these events, extended time period cannot be invoked because of all activities were in the knowledge of the department. We are unable to appreciate this response for the reason that even if activities are rendered by the appellant, the department does not know whether the activities are performed and payments for all the activities were received during the period April-June, 2000. This knowledge can only be sourced from the ST returns. It must be appreciated that in the returns no payments are shown to have been received prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receiving Board s clarification dated 27-6-2001 which was issued on the directions of the Hon ble High Court of Bombay. 5.2 The judgment in the case of Nizam Sugar Factory was delivered in a different context. The issue there related to the duty on production of impure carbon doixide emerging as a bye-product. A show cause notice was issued for the period February, 1978 to September, 1982 on 28-2-1984. Subsequently, another show cause notice was issued covering the years 1982-1983 to 1986-1987 invoking the extended time period. The Hon ble Apex Court held that once the first show cause notice was issued, the second show cause notice could not be issued invoking the extended time period as the facts were already in the knowledge of the authorities. Whereas in the present case it is not known to the authorities that the appellants are continuously providing all the services. It is on record that the said services were not provided even prior to April, 2000. Further the value of services for the period July-September was declared in the ST-3 returns filed for the period April-September, 2000. But the value of services for the period April-June was not declared in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; that therefore, the SCN is barred by limitation and is liable to be set aside. 34.1 However, I find that the aforesaid contentions of the assessee are not tenable. In this era of self-assessment regime, the assessee is expected to take utmost care while assessing and removing the goods manufactured by them. In spite of the heavy onus cast upon them, the assessee have wrongly assessed the goods manufactured by them and cleared the same to their distributors/dealers under the provisions of Section 4 of the Act although such goods were being sold in 'retail packages' 'for retail sale' as discussed in the preceding paras, and hence were required to be assessed under Section 4A of the Act. 34.3 In this regard, I find that the assessee are engaged in two types of sales - one directly to the industrial / institutional consumers and the other to distributors/dealers, who are engaged in 'retail sale' of these products, as discussed in the preceding paras. However, the goods cleared to their distributors/dealers were marked For Industrial Use/ Institutional Use As Raw Material. Not For Retail Sale , although the assessee were aware ..... X X X X Extracts X X X X X X X X Extracts X X X X
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