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TMI Blog2024 (6) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 1.7.2002, it is a settled issue that the job worker has to discharge duty based on the landed cost and the processing charges and therefore, on merits the demand is upheld. From the records placed, it is seen that the selling price of KHDC at times it is higher than the landed cost and the duty has been discharged on this higher value which has not been disputed by the department, however, the differential duty has been demanded in all those cases where the landed cost is higher than the selling price declared by KHDC. Time Limitation - suppression of facts or not - HELD THAT:- It is also on record that the appellants have been filing all these documents before the department in terms of monthly RT-12 Returns and price declarations, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (NTC) manufactures textiles fabric, terry towels, etc. the appellant undertakes processing of their own cloth and also receives grey fabrics from other units of NTC for processing like bleaching/dyeing and mercerizing on job work basis. For the goods received on job work basis from Karnataka Handloom Development Corporation (KHDC) a state government undertaking the appellant adopted selling price declared by KHDC while returning the processing cloth to KHDC. However, the Department observed that the value adopted by the appellant was incorrect and therefore, it needs to be re-determined by including the landed cost of the raw materials, processing charges, and all other relevant charges as per Section 4 of the Central Excise Act, 1944. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling price of the processed fabric and therefore, they declared the same selling price and paid excise duty based on the selling price declared by the KHDC. The clearances were made by filing statutory price declaration from time to time to the Central Excise Department till the time audit visited them in 2002, no objections were raised on these declarations. It is also submitted that the processed fabrics was not meant for sale in open market but for free distribution to the downtrodden school children and the entire cost was borne by the State Government. The appellant under a bona fide belief that the price declared by the KHDC included the real cost of the grey fabric and the processing charges paid duty on that selling price. It is on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they are eligible for refund of Rs.37,66,124/-. On limitation, it is claimed that they have been filing statutory price declaration along with RT-12 returns clearly indicating the selling price of the processed fabrics as declared by KHDC. Since the show-cause notice and the orders admit that the demands are based on the price declaration filed by the appellant, there cannot be any suppression of facts on the part of the appellant with an intent to evade payment of duty. It is further claimed that periodical show-cause notices for denying the deemed credit availed on the fabrics received for job work for the period August 1999 to March 2003 were issued. Hence, it is claimed that entire demand is time barred. 3. The learned Authorised Repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record that the selling price declared by KHDC is more than the landed cost plus processing charges in some of the cases. Therefore, the fact that the material facts were suppressed or the value was mis-declared is not justified. In the case of Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur dated on 22-1-2013 2013 (288) E.L.T. 161 (S.C.) the Supreme Court while dealing with the proviso to Section 11A on limitation observed that: A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11-A(1) of the Act. 5. In the present case, since the facts were known to the department and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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