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TMI Blog1976 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... on or after 1st day of April in any financial year by or on behalf of a manufacturer from one or more factories for home consumption from the whole of the duty of excise leviable thereon, provided that the exemption was not applicable where the value of the steel furniture cleared during a financial year exceeded Rs. 2 lakhs. The petitioners submitted particulars about the furniture cleared from its unit during the financial year 1968-69 and as the value of the steel furniture so cleared was less than Rs. 2 lakhs, no excise duty was levied on the steel manufactured by the petitioner unit as the notification was applicable to such a case. In 1971, however it was brought to the notice of the authorities that the petitioner was only one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner contended, inter alia, that the notice given did not come within Rule 10(A), the only Rule applicable in such a circumstances was Rule 10 and any notice under Rule 10 would be beyond time as it had to be issued within three months, which was later enhanced to one year. Whether the period is taken as three months or one year, the notice would be beyond time as the earlier notice was issued on 16-3-1971, i.e., more than one year after the completion of financial year 1968-69. This contention was negatived and an order was passed on 16-7-1974 and the demand for Rs. 10,019 was upheld. The petitioner had filed this writ petition praying for the issue of an appropriate writ quashing the show cause notice dated 16-3-1971 and 24-5-1974 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or these Rules, the proper officer may serve a notice on the person from whom such duty, deficiency in duty or sum is recoverable requiring him to show cause to the Asstt. Collector of Central Excise, why he should not pay the amount specified in the notice." 3.The three months period prescribed in Rule 10 was subsequently enhanced to one year. It is thus seen that whereas there is a time limit prescribed for the issue of a notice under Rule 10, no such time limit is prescribed for a notice under Rule 10(A). It has been held by the Supreme Court in N. B Sanjana v. E. S. W. Mills. . . (1) AIR 1971 S.C. P. 2039 that rule 10(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of steel manufactured by all the other units, would be a case of inadvertence or error on the part of the officer. If he felt in those circumstances the notification applied, when it did not, in fact, apply, it would be a case of misconstruction or even if it is taken that the petitioner did not give particulars of the goods manufactured by the other units it would amount to mis-statement by him. Whatever may be the reason Rule 10 is attracted and, therefore, in view of decisions of the Supreme Court referred to above Rule 10 (A) has no application. 4.The learned counsel for the Central Government, however, argued that this cannot be considered to be a case of short levy only when there is a levy or an assessment and in this case there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption clause applied and no duty was leviable by endorsing "Nil rate". In my view this would mean that the authorities applied their minds and came to the conclusion that no excise duty was leviable. It may be that that view was mistaken having regard to the circumstances of the case viz., the steel worth more than 2 lakhs was manufactured taking the production of all the units into consideration. But, it cannot be said that it is the case where there was no assessment at all. I am of the view that the decision in R. D. Singh v. State of Uttar Pradesh (3) AIR 1971 S.C. P. 2013 applies to the facts in the case. The show cause notice will, therefore, fall within Rule 10 and not under Rule 10(A) and as it was issued more than one year after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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