9911796707
TMI Blog1984 (4) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid rules committed by the petitioner, it is necessary to state certain facts leading to the issuance of the aforesaid impugned show cause notice. The petitioner manufactures cotton fabrics from cotton yarn. The said yarn is obtained from the sources (a) from open market and (b) from yarn manufactured in the petitioner's own factory. So far as the yarn obtained from open market is concerned, the petitioner was permitted to avail of the special procedure under Rule 56A of the Central Excise Rules. The petitioner had been maintaining subsisting the necessary registers and other books and forms in terms of the said Rule 56A and making adjustments by way of proforma credit. During the period from June, 1968, to August, 1972, the petitioner pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dum". If there was any short payment of duty by the petitioner, the memorandum empowered the authorities to demand the duty short paid but it is not the case of the respondents that the memorandum in this case really indicated any such short payment by the petitioner. In fact, in the impugned show cause notice also, it has been admitted that R.T. 12 forms had been submitted. Moreover, there is no allegation in the said show cause notice that goods were clandestinely removed. In support of his above contention, Mr. Gupta referred to the decision of the Supreme Court in the case of N.B. Sanjana v. Elphinstone Spinning and Weaving Mills reported in AIR 1971 S.C. 2039 (2048); 1978 E.L.T. (J 399), a decision of the Bombay High Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Universal Cables Ltd. v. Union of India reported in 1978 E.L.T. (J 632), wherein it was laid down that if the period of limitation for issuance of notice, for disallowance of credit under sub-rule (5) of Rule 56A had already expired on the date when the said rule was added, no notice could be issued under the aforesaid sub-rule disallowing the credit and for recovery of equivalent amount. Lastly, Mr. Gupta has contended that the order passed by the revisional authority is not a speaking order. It rejects the revisional application even without recording any finding as to the basic requirement for application of Rule 9, sub-rule (2), of the Central Excise Rules, namely, removal of excisable goods in a clandestine manner. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is again one of the rules within Chapter VIIA of such Rules. On a proper reading of the different rules covered by the said Chapter VIIA, it becomes clear that the assessment memorandum, which is a part of the printed R.T. 12 form, is intended to give finality to the assessment on the basis of R.T. 12 return. The said memorandum clearly indicates that the excise authorities are empowered to demand any duty short paid by the assessee. Secondly, in the present case, the contention that there was no assessment is also contrary to what is stated in the impugned show cause notice itself. A careful reading of the show cause notice amply indicates that the fact of assessment having been completed was accepted also by the statutory authority. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case as, at any rate, this is admittedly not a case of clandestine removal and under the decision of the Supreme Court in Sanjana's case-1978 E.L.T. J 399 = AIR 1971 S.C. 2039, this element of clandestine removal is essential for attracting Rule 9(2). That decision makes it clear that for the application of Rule 9(2) two elements are necessary : (i) clandestine removal of the goods and (ii) non-assessment; and the absence of either will preclude its application. 6. It is significant to note in this connection that the Assistant Collector, who has affirmed the affidavit-in-opposition on behalf of the respondents, is the statutory authority to assess the excise duty with regard to the goods, which are the subject-matter of the present lis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
