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TMI Blog1999 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... g with ROM during the course of arguments Shri Banerjee raised a ground that they have argued that the show cause notice itself is barred by limitation and a number of arguments were advanced during the course of hearing. However, the said arguments have not been dealt with and, therefore, there is an error apparent on the face of the record. Though this plea is not incorporated in the ROM since it was argued during the course of hearing, we have taken up this issue. The Collector in para 1.6 in his Order-in-Original gave a finding that the provisions of Rule 9(2) read with Section 11A are correctly invokable. He referred to Section 11A, perhaps it is a mistake for the proviso to Section 11A. We have not considered this issue in our order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts could be alleged against the appellants. It has particularly been pointed out that the Order-in-Original has noted that the appellant M/s. Elpro had sold their goods to M/s. I.G.E. and had filed price lists in Part-IV declaring the prices at which M/s. I.G.E. sold the goods to final customers and M/s. Elpro paid duty on the price so finally charged by M/s. I.G.E. 3.1The Tribunal's order in appeal also took note of the fact that M/s. Elpro was paying duty from October 1st, 1975 onwards on prices at which the goods were finally sold by M/s. I.G.E. 3.2It has also been submitted that the department was all along aware of the nature of the transaction between M/s. Elpro and M/s. I.G.E. and had treated them as related persons. The departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 994 (74) E.L.T. 9 - Tamil Nadu Housing Board v. Collector of Central Excise, Madras. 4. 1995 (75) E.L.T. 721 - Cosmic Dye Chemical v. Collector of Central Excise, Bombay. 5. 1995 (76) E.L.T. 497 - Collector of Central Excise v. HMM Limited. 6. 1995 (78) E.L.T. 401 - Pushpam Pharmaceuticals v. Collector of Central Excise. 7. 1998 (100) E.L.T. 8 - Collector of Central Excise v. Malleable Iron & Steel Castings. High Court judgment II. relied upon : (Bombay) 1. 1995 (80) E.L.T. 759 - EWAC Alloys L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise. 12. 1995 (80) E.L.T. 368 - Apex Steels (P) Ltd. v. Collector of Central Excise, Chandigarh. 13. 1996 (86) E.L.T. 79 - Alpump Pvt. Ltd. v. Collector of Central Excise, Madras. 3.3 Countering the arguments made on behalf of the appellant, the learned Senior Departmental Representative has submitted that the show cause notice has specifically alleged that M/s. Elpro had failed to declare the correct pattern of sale through their related person and had deliberately excluded a part of advertisement expenses, the value of certain essential parts - components of the X-ray equipments and installation charges from the assessable value which constituted wilful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive also referred to the finding of the Tribunal in its Final Order No. 7-8/91-A in para 5 and 6 that M/s. I.G.E. is the manufacturer of X-ray machines/equipments from 3 items supplied to them by M/s. Elpro and other items procured from the market. 4.We have perused the records of the case and have considered the rival submissions on the issue of time bar. We find that it is an admitted position that the appellants had been following the same pattern of marketing from 1975. They were selling their products to M/s. I.G.E. under contract price and M/s. I.G.E. was selling the goods along with other bought out goods to ultimate buyers. The department was aware of the fact that M/s. Elpro was selling the components in question to M/s. I.G.E. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, beneficiaries of those transactions. Therefore, it cannot be alleged that M/s. Elpro mis-stated or suppressed any facts relating to M/s. I.G.E.'s relations with their customers with intent to evade Central Excise duty. These were entirely upto the Central Excise authorities to enquire into once they were informed that their sales were through M/s. I.G.E. Therefore, we are of the view that allegation of suppression of facts or mis-statement against M/s. Elpro is not justified in the facts and circumstances of this case. Consequently, the extended period of 5 years as provided in the proviso to Section 11A(i) of the Central Excises Act was not attracted in this case. Accordingly, it is ordered that while re-adjudicating the case, the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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