9911796707
TMI Blog1990 (4) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... Amritsar and its proprietor partner Kailash Chand Maheshwari filed the suit inter alia alleging that they had purchased 2578.749 metric tonnes of steel rails for the purposes of re-rolling in their own mills in the year 1964-65 from M/s. Hindustan Steel Ltd., Bhilai. They obtained a licence from the Central Excise Department for manufacture of iron and steel products in their factory. The Inspector of Central Excise issued a notice of demand on March 2,1966 demanding differential duty at a rate of Rs. 50/- per metric tonne. It was alleged that no separate duty was payable on the rails as under Item No. 26-AA(i) of the Tariff, duty had already been paid on the purchase of rails. The said item pertained, to semi-finished steel including bloom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 10 which was applicable but it was Rule 10-A of the Rules which was applicable and the period of limitation of three months as provided under Rule 10 was not attracted. 2. The trial Court decided issue No. 4 against the plaintiffs. Other issues were decided in their favour and the suit was dismissed on January 24,1976. The plaintiffs' appeal was dismissed by the Additional District Judge, Amritsar, on September 25,1978. 3. While referring to the demand notice Exhibit P.31 it has been argued by Shri Satish Chander, Senior Advocate, appearing on behalf of the appellants that the claim was made on account of differential duty as mentioned therein and, thus, the case would fall under Rule 10 of the Rules. In order to appreciate this argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been short-levied through inadvertence, error, collusion, or misconstruction on the part of an officer, or through mis-statement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such cause, erroneously refunded, the proper officer may, within three months from the date on which the duty or charge was paid or adjusted in the owner's account-current, if any, or from the date of making the refund, serve a notice on the person from whom such deficiency in duty or charges is or are recoverable requiring him to show cause to the Assistant Collector of Central Excise why he should not pay the amount specified in the notice. (2) The As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to pay such amount or within such extended period as the Assistant Collector of Central Excise may, in any particular case allow." 5. Mr. S.C. Sibal, Senior Advocate for the appellants has argued that the present case would fall under Rule 10 as reproduced above. As the department wants to recover the difference of the excise duty payable on the rails, the appellants have already paid excise duty thereon at the time of purchasing the same and the period of three months as provided under Rule 10 having expired, the notice making demand of the excise duty was thus illegal. In support of this contention, reliance has been placed on the decision of the Supreme Court in N.B. Sanjana, Assistant Collector of Central Excise, Bombay and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they were not manufacturing any articles on which excise duty was payable and it is on that account that the stand of the department was that no Inspector of the Excise department was deputed in the factory of the appellants. In such premises, it cannot be said that the present is a case of nil assessment as no evidence was produced at the time of removal of the manufactured goods from the factory nor necessary documents were got cleared from the Excise department. To repeat it may be stated that on notice being issued to the appellants to provide data of the articles manufactured out of untested rails produced by the appellants on which exemption could be claimed by the appellants from payment of excise duty, the appellants did not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served as under: "Section 37(1) of the Central Excises and Salt Act, 1944 enables the Central Government to make rules 'to carry into effect the purposes of this Act'. Sub-section (2) of said Section 37, enumerated the matters the rules might provide for 'in particular' and without prejudice to the generality of the foregoing powers'. Thus this section did not require that the enumerated rules would be exhaustive. Any rule if it could be shown to have been made 'to carry into effect the purposes of the Act', would be within the rule making power. Chapter II of the Excise Act provides for the levy and collection of excise duty in such manner as may be prescribed. It could not, therefore, be said that Rule 10-A was not covered by the above p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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