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TMI Blog2006 (3) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise and Gold (Control) Appellate Tribunal in terms of Section 35B of the Central Excises and Salt Act, 1944 and that the appeal may be filed within three months from the date of communication of the order. In our view, therefore, the writ petition is liable to be dismissed on this ground alone. 3. However, since the writ petition pertains to the year 1988 and remained pending before this court for more than 17 years, we thought it fit to look into the merits of the matter as well. 4. The petitioner carries on manufacturing activities at the factory premises situated at 2-C D, Government Industrial Estate, Kandivli (West), Bombay-67 as the sole proprietor of firm M/s. S.J. Shah Sons. The petitioner is also the sole proprietor of another concern known as Chandan Industries (India). Both the concerns viz. M/s. S.J. Shah Sons and M/s. Chandan Industries (India) operate from the same place. It is petitioner's case that he received an order from M/s. Nuclear Fuel Complex, Hyderabad for the supply of Extrusion dies. In order to determine the proper classification of the Extrusion dies and to ascertain the duty liability thereon, he approached the department and sought its gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (respondent No. 2) was constrained to issue show-cause notice dated 20th February, 1986 to the petitioner on the ground of violation of Rules 174, 173B, 173C, 173F, 173G(1) read with 9(1), 173G(2) read with 52A, 173G(4) read with 226 of the Central Excise Rules, 1944. The notice to show-cause dated 20th February, 1986 reads thus :- "NOTICE TO SHOW CAUSE : WHEREAS it appears that Shri RAMNIKLAL SHANKARLAL SHAH, (hereinafter referred as R.S. Shah) Proprietor of M/s. Chandan Industries, M/s. S.J. Shah Sons and M/s. Cast Fab Industries, having his office at Goumukh Bhavan, Masjid Bunder Road, Bombay-400 009, and factory at Plot No. 2CD, G.I.Estate, Kandivli (W), Bombay-400 067, has contravened the provisions of Section 6 of the Central Excises and Salt Act, 1944, read with rule 174 of the Central Excise Rules, 1944, rule 173B, rule 173C, rule 173F, rule 173G(1) read with rule 9(1), rule 173G(2) read with rule 52A, rule 173G(4) read with rule 53 and rule 226 of Central Excise Rules, 1944, inasmuch as he manufactured and cleared excisable goods falling under Tariff item No. 51A, and Tariff Item No. 68, during the period January, 1980 to December 1984, without payment of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed for confiscation of land, building, plant and machinery and materials used in connection with the manufacturer, storage and removals of the aforesaid T.I. 51A and T.I. 68 goods under clause (2) of rule 173Q ibid: Shri R.S. Shah, should also indicate in his written explanation whether he wishes to be heard in person before the case is adjudicated. He is further directed to produce at the time of showing cause all the evidence upon which he intends to rely in support of his defence. If no cause is shown against the action proposed to be taken within one month of the receipt of this notice and the addendum to the notice to be issued or if he does not appear before the adjudicating authority when the case is posted for hearing the cause will be decided on the basis of evidence on record. The amount of duty will be quantified as soon as the information regarding manufacture and clearances is submitted by Shri R.S. Shah. This notice is issued without prejudice to any other action that may be taken against the aforesaid Shri R.S. Shah under the Central Excise Law or any other law for the time being in force. The basis for the proposed action is as set out in annexure to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner in getting clearances of the excisable goods manufactured by its firm M/s. S.J. Shah Sons under Tariff Item 68. He submitted that the extended period could not have been invoked by the department as there was neither fraud nor intent to evade payment of duty on the part of the petitioner. Relying upon the judgment of the Apex Court in the case of Tamil Nadu Housing Board v. Collector of Central Excise, Madras, 1994 (74) E.L.T. 9, the learned counsel submitted that the burden to prove fraud and the intent to evade payment of duty lay on the department which they failed to discharge and, therefore, the limitation for extended period could not have been invoked. The learned counsel also relied upon the judgment of the Supreme Court in the case of Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay, 1995 (78) E.L.T. 401. The learned counsel also pointed out the defect in the show-cause notice inasmuch as, according to him, no specific amount was mentioned and, rather, it was stated in the notice that the exact duty evaded since 1-4-1980 shall be worked out in due course and the same shall be shown in the addendum. 9. We considered the submissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s valued at Rs. 36,28,474/- and had recovered Central Excise duty to the tune of Rs. 2,55,119.25 from them alone. The names of other customers to whom excisable goods were supplied by the petitioner were not disclosed. If this is not fraud with intention to evade excise duty then what else it is. The facts that came on record before the Collector of Central Excise showed that there was suppression and fraud on the part of the petitioner and also intent to evade payment of duty. In these facts, the Collector of Central Excise cannot be said to have erred in invoking limitation for extended period. The judgments of the Supreme Court in the cases of Tamil Nadu Housing Board and Pushpam Pharmaceuticals Company, relied upon by the learned counsel for the petitioner, do not help in the light of the facts that we have indicated above. 12. It is pertinent to note that though the petitioner sought to claim exemption from the licensing control under Notification No. 111/78-C.E., dated 9-5-1978 read with Notification No. 2/81, dated 17-1-1981, while claiming exemption from the licensing control, he did not submit his licence for cancellation but retained the same with him for which no reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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