9911796707
TMI Blog2005 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... etroleum products classifiable under Chapter 27 of the schedule to the Central Excise Tariff Act, 1985. They import crude oil and refine the same into their final products and their final manufactured products are cleared under the Central Excise invoices issued by the Haldia Marketing Division as per their internal arrangement. The refinery wing of the appellant cleared motor spirit, high speed diesel etc. in tank wagon and realized siding/shunting charges from its buyers at specified rates applicable at the production point. However, the said siding/shunting charges were not included in the assessable value of the cleared products for the determination of Central Excise duty during 1-4-1994 to 30-6-1996. In addition to above the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 837/2002 show cause notices were issued on 16-10-2001 for the period from April 1994 to June 1996 i.e. the entire period was beyond the 5 years from the date of issuance of the show cause notice. He submitted that when this fact was pointed out to the Commissioner, he has recorded that in the year 1999 Superintendent had written a letter to the Appellant asking them to give details of the free distribution zone (FDZ) charges being collected from their customers and as such the said letter is to be taken as the relevant date. Mr. Bagaria has drawn our attention to the Hon'ble Supreme Court decision in the case of Metal Forgings Anr. v. UOI Ors. reported in 2002 (146) E.L.T. 241 (S.C.) = 2002 (53) RLT 507 wherein the Apex Court has o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal was totally time barred as having been issued after expiry of 5 years. The second part of the disputed demand covered by Annexure "B" to the show cause notice involved in this appeal was time barred in so far as it related to the period prior to 10-10-1996 as having been issued after 5 years. 7. In respect of the second part covered by Annexure "B" to the show cause notice dated 16-10-2001 involved in appeal No. 835/2002, the Sr. Advocate submitted that there was no scope to invoke longer period of limitation of 5 years. Even in respect of the said second part of the show cause notice the demand was totally time barred as it was issued after expiry of one year from the relevant date. This part of the show cause notice relates to charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessable value. The Revenue has not disclosed any intention to evade Central Excise duty. The Sr. Advocate further submits that the Hon'ble Supreme Court has held in a number of judgments that in order to invoke longer period of limitation of 5 years, "the assessee must be guilty of withholding information deliberately with intent to evade payment of duty" and that in his case longer period cannot be invoked at all. In support of his contention he puts reliance on the following decisions of the Hon'ble Apex Court :- (a) Baidyanath Ayurved Bhavan Ltd. v. Commissioner of Central Excise - 2004 (165) E.L.T. 494 (b) Jaiprakash Industries Ltd. v. Commr. of Central Excise reported in 2002 (146) E.L.T. 481 (S.C.) = 2002 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice by his order dated 10-12-2003. In view of above, he submits that the appeals filed by the Appellants kindly be allowed. 10. We have heard Shri J.R. Madhiam, ld. JDR who reiterates the findings of the Commissioner. 11. After hearing both the sides, we find that show cause notices in Appeal No. 836/2002 and 837/2002 were issued beyond 5 years from the relevant date. The Apex Court in the case of Metal Forgings Anr. v. UOI Ors. reported in 2002 (53) RLT 507 (S.C.) has held that - "Issuance of a show cause notice in a particular format is a mandatory requirement of law. The law requires the said notice to be issued under a specific provision of law and not as a correspondence or part of an order. The said notice must also indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section (1) of Section 11-A of the Act, it had to be established that the duty of excise had not been levied or paid or short-levied or shortly-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. It was observed by this Court that something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability beyond th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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