TaxTMI 
TaxTMI 
1986 (10) TMI 148
X X X X Extracts X X X X
X X X X Extracts X X X X
....y of the sale vouchers issued by the sole selling agents and sub-agents, the department found that the handling charges varying from Rs. 10/- to Rs. 20/- per M.T. were recovered from the customers and the sale tax was also paid on the said handling charges. As these charges were not declared in the price list, on 2-11-1976 the Superintendent of Central Excise issued a demand show cause notice for Rs. 3,65,616.79 under Rule 10A of the Central Excise Rules, 1944, in respect of cement cleared during the period from October, 1974 to September, 1975. The demand was confirmed by the Assistant Collector of Central Excise by his order, dated 7-5-1979. An appeal was, thereafter, filed before the Appellate Collector of Central Excise, New Delhi, challenging the order of the Assistant Collector, but the same was also rejected. 2. When the matter came up for hearing before us, Shri P.N. Dixit, Assistant Commercial Officer of M/s Jaipur Udyog Limited appeared for the appellants and Shri S. Krishnamurthy, S.D.R. appeared for the respondent. Shri Dixit stated that in view of the judgment of the Hon'ble Supreme Court in the case of Bombay Tyres International Limited reported in 1983 E.L.T.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Whether there has been suppression of facts on the part of the appellants by not declaring the handling charges in the price list; (ii) Whether Rule 10 or Rule 10-A is applicable in the present case; and (iii) Whether the demand could be confirmed under Rule 10-A after the rule was deleted from the statute. 5. Regarding first question, we find that there was an agency agreement between the appellants and their sole selling agent M/s Bharat Overseas Private Limited. The relevant paragraphs of the agreement are re-produced below:- "(2) That the ex-works and/or F.O.R. destination prices (exclusive of Sales Tax and other local taxes) of cement manufacture by the manufacturer and the terms and conditions on which the cement has to be sold shall from time to time be advised by the Manufacturer to the agent and all cement manufactured by the Manufacturer and covered by this Agreement shall be sold by the Agent on behalf of the Manufacturer at the price and on terms of business as may be communicated by the Manufacturer from time to time. xxxx &n....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... may be required by the Manufacturer from time to time. xxxx xxxx (14) That the Agent would be remunerated for its work as sole selling agent by payment of sole selling Agency Commission @ Rs. 1.25 per tonne of cement sold on behalf of the manufacturer by the Agent." 6. We find from the agency agreement that the agents were selling the cement on behalf of the manufacturer at the price and terms of business as might be communicated by the manufacturer to the agents from time to time. All payments of cement sold in terms of the said agreement were collected by the agent on behalf of the manufacturer and those were to be disbursed in such manner as might be required by the manufacturer from time to time. As per the agreement, the manufacturer was entitled to inspect the stock and relevant records maintained by the agent. The agents were to keep and maintain the books of accounts and records in respect of sale and despatch o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder Sub-Rule (1), shall determine the amount of duty or charges due from such persons (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined within ten days from the date on which he is required to pay such amount or within such extended period as the Assistant Collector of Central Excise may, in any particular case, allow. "10-A Residuary powers for recovery of sums due to Government. (1) Where these Rules do not make any specific provision for the collection of any duty, or of any deficiency in duty if the duty has 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 Assistant Collector of Central Excise why he should not pay the amount specified in the notice. (2) The Assistant Collector of Central Excise, after considering the representation, if any, made by the person on whom notice is served under sub-rule (1), shall det....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s case under Rule 10-A. There is no time-limit for raising demand for duty under this Rule. In the result, the demand for duty is not hit by limitation in the present case. 11. The third point of paragraph 4 (supra) is covered by the decision of this Tribunal in the case of M/s Atma Steels Private Limited v. Collector of Central Excise, Chandigarh and others reported in 1984 (17) E.L.T. 331. This is a decision of the Larger Bench of this Tribunal. It was held therein by this Tribunal that the proceedings initiated with reference to rule or provision validly subsisting at the time of initiation of proceedings can continue in spite of repeal or substitution of original provisions. It was held that pending proceedings under Rule 10-A of Central Excise Rules could continue irrespective of the fact that the said rule was subsequently removed from the relevant provisions. We respectfully follow the decision of the Larger Bench and hold that in the present case the Assistant Collector could confirm the demand after Rule 10-A was deleted from the Central Excise Rules, 1944. 12. Shri Dixit cited two judgments of the Supreme Court in support of his contention. We find that th....