TaxTMI 
TaxTMI 
2002 (5) TMI 376
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....t by time limit specified in Section 11A(1) of the Central Excise Act. 2. Shri Naveen Mullick, learned Advocate, submitted that a partnership firm in the name of M/s. Borg Instrumentation India with two partners was started in 1986 for manufacturing domestic electrical appliances; that they had filed declarations under Rule 174A of the Erstwhile Central Excise Rules, 1944 during the financial years 1986-87, 1987-88 and 1988-89 as value of clearances of the goods effected by them being less than Rs. 7.5 lakhs; that two more partners joined the partnership firm in June, 1989; that in the same year the factory in Delhi was also started and the unit at Faridabad was closed on 31-3-90; that with effect from 1-4-90, the firm was converted....
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....so emphasized that the allegation contained in the show cause notice dated 9-1-95 issued to them was that they had wrongly availed the exemption by mis-declaring that they were availing exemption at Faridabad earlier; that however, the Adjudicating Authority in his adjudication order has given his finding that they had suppressed the facts of production and clearance of the goods with intent to evade the payment of duty; that suppression of facts and mis-declaration are two different ingredients mentioned in Section 11A(1) of the Act and both carry different meanings and accordingly, the extended period of limitation is not invokable in the present matter. 3. Countering the arguments Shri M.P. Singh, learned Departmental Representat....
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....e remand should be given in the matter merely because Commissioner (Appeals) had not considered the aspect of time bar. In reply, the learned Advocate submitted that it has been held by the Tribunal in the case of Dogma Auto Industries v. CCE, New Delhi - 2000 (40) RLT 523 that on change in the constitution of firm, no fresh registration as SSI unit is required and the benefit of Notification will be available to the firm. He also mentioned that as in the case of demand, duty is to be paid by them, their value should be treated as cum-duty-price in view of the decision of the Larger Bench in the case of Srichakra Tyres Ltd. v. CCE, Madras, 1999 (108) E.L.T. 361 (Tribunal); that the Commissioner (Appeals) has also directed the Department as ....
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....rein the benefit of Notification will be available even without being registered as SSI unit. Proviso (a) provides that benefit of Notification will be available in a case where the value of clearances from a factory during the preceding financial year or in the current financial year did not exceed or is not likely to exceed Rs. 7.5 lakhs. It is also not in dispute that their value of clearances during 1990-1991 was more than Rs. 7.5 and accordingly provisions of proviso (a) are not available to them. Proviso (b) contains the second exception according to which where the manufacturer who is manufacturing specified goods in a factory and has been availing of the exemption under the Notification No. 175/86 during the preceding financial year....
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....had manufactured and cleared the goods without payment of Excise duty leviable thereon and without observing the Central Excise Procedure and formalities with intent to evade the payment of duty. Once such a specific allegation is contained in the show cause notice, it cannot be claimed by them that the Department has invoked extended larger period on two different grounds - one in the show cause notice and the other in the adjudication order. It is not in dispute that during 1990-91 they filed no declaration with the Department nor the purchase of the partnership firm was intimated to the Central Excise Department. A mere fact that Sales Tax Department continued the same Registration No. does not mean that the Central Excise Department sho....