TaxTMI 
TaxTMI 
1984 (4) TMI 191
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....y "purporting" because, as will appear below, the applicant had failed to furnish a true and correct statement of facts in Annexure 'A' to his application dated 26th August, 1983. Nor did he furnish the draft of the questions of law sought to be referred initially in Annexure 'B' to the said Application. Subsequently, after the Application became part heard, he filed a revised Annexure 'B' dated 13-3-1984 in which he attempted to set out, what according to him, is a question of law that has to be referred to the Hon'ble High Court of Allahabad. 2. The Tribunal's order which had, according to the Applicant, given rise to a question of law, is the one contained in Order No. 221/83 dated 14th June, 1983 in Appeal No. ED(Del.)(T.) 130/82-NRB....
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....uction of the relevant Rules, that, in terms of the proviso to Rule 10, as it then existed, it is only if a short levy was occasioned by reason of - (i) fraud, collusion or any wilful misstatement or suppression of facts by such person or his agent; or (ii) contravention of any of the rules with intent to avoid payment of duty; (emphasis supplied) the period within which the notice to show cause could be issued is five years instead of six months; (B) on the facts, that, it cannot but be held that the proviso to Rule 10 was altogether inapplicable for the recovery of the duty in this case, for,- (a) when the entire process was discussed and ultimately the Revenue were told that they would start "remelting all our returned g....
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....d; (d) in the premises, the case does not fall within Clause (i) to the proviso to Rule 10 so as to attract the five year period of limitation to govern the adjudication in question; (e) the second, clause of the proviso to Ride 10 is equally inapplicable seeing that- (i) it speaks of contravention of the provisions of the Rules with "intent to evade payment of duty"; (ii) no such intent had been either alleged in the show cause notice nor proved in the proceedings; (iii) in actual fact the discussions that proceeded the commencement of the actual resort to 173-H negate the intent to evade payment of duty; one would hardly expect correspondence and discussions of the entire procedure to be followed if the inte....
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.... case and there was consequential failure to pay duty that was otherwise leviable, resort has, necessarily, to be made to Rules 9,10 and 173Q. Rule 173H itself does not speak of an abuse of its provisions which may entail payment of duty or prescribe the period of limitation within which such duty could be recovered; (c) a perusal of the aforesaid Rules 9,10 and 173Q reveal that in terms of the proviso to Rule 10 the period within which a notice to show cause in terms thereof could be issued within 5 years instead of six months of the relevant date only if either- (i) fraud, collusion or any wilful mis-statement or suppression of facts by such person or his agent; or (ii) contravention of any of the rule with intent to avoid paymen....
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....H was the issue and we decided that it was inapplicable in the facts and circumstances of the case. Even if there was any contravention of any of the Rules, it was our finding that it was not with intent to avoid payment of duty. The question either betrays ignorance of or otherwise confuses the real issue that arose for determination and were actually decided in the Appeal. Nor did the applicant challenge our findings in any way. The aforesaid question cannot be said to arise out of our order in the circumstances. 8. Indeed, the, entire application is nothing but an attempt to confuse the issues and to that end, the facts of the case had even been distorted- (a) In para (1) of the Annexure 'A' to the Application (Statement of facts) ....
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....ion No. 5/70. All that he wrote was that the Respondent may approach the Superintendent concern" to aprise you about procedure under Rule 173H and the accounts to be maintained as prescribed by the Collector, Central Excise, Kanpur under Notification No. 5/70". (c) In para (3) of the said Annexure, reference was made to the Respondent's letter dated 10-1-1977. In the said letter, a reference was categorically made to the visit of the Assistant Collector on 31-12-1976 when the matter was discussed and it was further placed on record that "we were informed that we can start remelting all our returned goods and remake them into fresh pistons and rings of the same category and redespatch them without payment of duty. In view of the above cla....