TaxTMI 
TaxTMI 
2011 (6) TMI 685
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....-80 i.e. 10-5-1979. In the meantime 8% rate of duty was prescribed for these goods. The said parts and accessories of Motor Vehicles were being supplied to M/s. Bajaj Auto Ltd., Pune and M/s. Ideal Jawa (I) Ltd., Mysore. The same were being manufactured either on job work basis or out of appellants' own material. The appellants during the period were not holding licence with the Dept. Based on the visit on 8-1-1981 and consequential investigation, the Asst. Collector of Central Excise (Bombay-I) issued SCN dated 2-6-1981 proposing to recover Central Excise duty and also proposing to impose penalty and confiscate goods. The SCN proposed recovery of duty under Rule 10A and/or provisions (a) and (b) of sub-rule (1) of Rule 10 read with Rule 9(2) of CER, 1944, and/or Section 11A of CESA, 1944. The SCN also invoked extended period on the ground of suppression of facts. The SCN claimed that SSI Exemption under Notifn. No. 176/77-C.E., dated 18-6-1977 was not available to TI-68 goods in view of their exceeding the eligibility criteria of Rs. 30 lacs. After due process of law, ld. Collector of Central Excise, by his Order-in-Original dated 30-11-1984, upheld the charges in SCN and....
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....esugar Works Ltd. - 2000 (119) E.L.T. 257 (S.C.) (ii) Ambalal Sarabhai Enterprises Ltd. - 2001 (133) E.L.T. 531 (S.C.) (iii) Bengal Lamps Ltd. - 2005 (191) E.L.T. 399 (T) (iv) Sunrise Structurals & Engg. Ltd. - Order No. A/711 to 722/WZB/2004-C-II, dated 27-8-2004 [2004 (117) ECR 307 (T)]. (C) that, since the parts and accessories of Motor Vehicles were supplied to M/s. Ideal Jawa India (I) Ltd., Mysore and Bajaj Auto Ltd., Pune for further use in the manufacture of two wheelers, subject to following of Chapter-X Procedure, value of these goods has to be excluded for the purpose of allowing exemption under Notifn. No. 75/79-C.E., dated 1-3-1979, 167/79-C.E., dated 19-4-1979 as amended by Notifn. No. 187/79-C.E., dated 10-5-1979. If the value of exempt goods is excluded, duty liability would be marginal. (D) that in any case, demand for the period 18-6-1977 to 31-10-1980 is barred by limitation as there was no suppression of facts with intent to evade duty in view of availability of exemption to Motor Vehicles parts under Notifn. No. 75/79, 167/79-C.E. and for the said reason fine and penalty are not su....
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....E.L.T. 20 (S.C.) - Narayan Polyplast (2) 2005 (179) E.L.T. 276 (S.C.) - Narmada Chematur (3) 2003 (153) E.L.T. 579 (T) - Smithkline Beecham (4) 2007 (214) E.L.T. 321 (S.C.) - Jamshedpur Beverages (5) 2006 (206) E.L.T. 728 (T) - IFGL Refractories Ltd. In the present case, M/s. Bajaj Auto Ltd. (Page 14) and M/s. Ideal Jawa (page 17) have certified, billwise that the components obtained from them from the appellants were used in the manufacture of Motor Cycles which were cleared on payment of duty. Therefore, whatever the duty paid on the said goods was available as set-off and hence, in this case duty neutrality gets conclusively evidenced. In Jamshedpur Beverages (supra), it was held by the Hon'ble Supreme Court that since whatever duty was paid was available as credit, it was revenue neutral and hence, ratio of said judgments would apply squarely. (H) in the same proceedings having the issue of availability of exemption based on intended use and substantial compliance of Chapter-X, Hon'ble Supreme Court itself....
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....s. 176/77-C.E., dated 18-6-1977, 89/79-C.E., dated 1-3-1979 and Notifn. No. 105/80-C.E., dated 19-6-1980 are subject to fulfilment of conditions and the same have not been claimed, hence the exemption cannot be extended. (d) that the claim of the appellants that ld. Collector had not have offered any findings on time bar is incorrect as ld. Collector specifically holds that the charges in SCN were upheld. (e) that on merits, the Constitution Bench of Supreme Court in Hari Chand Shri Gopal [2010 (260) E.L.T. 3 (S.C.)] would squarely be against the appellants. (f) that claim of Revenue neutrality, based on Larger Bench of Tribunal judgment in Jay Yushin Ltd. [2000 (119) E.L.T. 718 (Tri-LB)] would not be a ground, as it could apply only where credit was available to the assessee himself. (g) that during the disputed period there were no two views on the issue and hence, the appellants cannot claim support of subsequent Larger Bench judgment in Hari Chand Shri Gopal for limitation. 9. In re-joinder, the Advocate for appellants made the following submissions : (i) ....
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....or does not specify which out of various omissions or commissions mentioned therein have been contravened and hence, extended period is not invocable. By merely observing that the charges levelled in SCN have conclusively been proved, would not entail for invocation of extended period based on the following judgments : (i) H.M.M. Limited - 1995 (76) E.L.T. 497 (S.C.) (ii) Raj Bahadur Narain Singh Sugar Mills - 1996 (88) E.L.T. 24 (S.C.). (vi) that when Constitution Bench of Supreme Court itself in Para 15 r/w Paras 11 to 16 in Gopal Zarda Udyog [2005 (188) E.L.T. 251 (S.C.) has held that extended period for non-following of Chapter-X procedure would not be invocable, invoking extended period in the present case is incorrect as only one view in favour of trade was prevailing, as held in Thermax Pvt. Ltd. [1992 (61) E.L.T. 352 (S.C.)] and J.K. Synthetics [2000 (120) E.L.T. 54 (S.C.)]. (vii) that the Explanation to retrospective validation of Section 38A, by Section 132 of Finance Act, 2001, would support that extended period and penalty would not sustain. (viii)  that even for the normal perio....
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....ssue show cause notice or not for which we have to go through Section 11A of the Act which was enforced at the time of issuance of the show cause notice. As per Section 11A, the Central Excise officer was empowered to issue show cause notice. Therefore, we do not find any merit in the contention of the learned Advocate that the Assistant Collector was not having any power to issue show cause notice. 7. The next issue is that whether the show cause notice can be issued under Rule 10 or Rule 10A which were omitted w.e.f. 6-8-1977 and new Rule 10 was enforced from 6-8-1977 to 16-11-1980. The show cause notice was issued on 2-6-1981. We are in agreement with the contention of the learned DR that by invoking the provisions of Section 38A, the revenue has power to issue show cause notice under Rule 10/10A during the relevant period. 8. Now we come to the issue whether in the facts and circumstances of this case the extended period of limitation is invocable alleging suppression of facts or contravention of the provisions of law with an intent to evade duty or not? In the case of Hari Chand Shri Gopal (supra) the Hon'ble Apex Court has in paragraph 15 of the order held as ....