TaxTMI 
TaxTMI 
2019 (12) TMI 635
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....eyond the normal period of limitation would not lie. Accordingly, the arguments of Learned Authorised Representative are similarly limited and we restrict our findings to that plea alone. 2. The appellant is a manufacturer of 'sugar and sugar confectionery' and 'chocolates and other food preparations' which, with effect from 24th December 2008, were required to discharge duty liability under section 4A of Central Excise Act, 1944. Admittedly, while the appellant does clear their manufactured products to 'industrial' and 'institutional' buyers which are specifically excluded from the purview of Legal Metrology Act, 2011, it was the case of central excise authorities that packages, bearing the inscription 'For Industrial Use/Institutional Use As Raw Material Not For Retail Sale', were also being sold to ultimate consumers, assessed by reference to section 4 between 1st December 2009 and 31st August 2014, and not to the applicable section 4A, of Central Excise Act, 1944 entailing differential duty of Rs. 4,06,47,261, along with interest thereon under section 11AB of Central Excise Act, 1944, besides imposition of penalty under section 11AC of Central Excise Act, 1944.The evidence r....
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....f industrial or institutional consumer as contained in Rule 2A being restricted to the rule would not be applicable. The words industrial or institutional consumer under the proviso to Rule 2(p) it is submitted will have to be given its normal dictionary meaning. It is only if Rule 3 applies, would the action of the respondents in attaching the petitioners' packages be legal, otherwise it would be illegal. It is in that context that we have to understand the expression ultimate consumer as set out in the definition of retail package or retail sale in the context of industrial or institutional consumer. The definition of retail sale, is sale for consumption by individual or group of individuals or any other consumer. Retail package is defined to mean packages which are intended for retail sale to the ultimate consumer for the purpose of consumption of the commodity contained therein. The object therefore appears to be disclosure of the sale price to a customer for consumption, whether such consumer be individual, group of individual but excludes industrial or institutional consumer. An industrial consumer who purchases a retail package by retail sale would be normally a con....
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....l or institutional consumers. Therefore, it is clear that the protection under this Act is confined only to individuals and persons who are eking out livelihood by self employment and not to institutional and industrial consumers or consumers who purchase goods in large quantities. Therefore, requirement of Rule 6 is not required to be complied with by a manufacturer who sells his packaged goods to an industrial or institutional consumer through a stockist.' 5. It is further contended that the issue itself is not beyond legal doubt as is apparent by the reference to Larger Bench in State of Maharashtra v. Subhash Arjundas Kataria [2012 (275) ELT 289 (SC)]. 6. Referring to the decision in Schneider Electrical India (P) Ltd v. Commissioner of Central Excise [2014-TIOL-337-CESTAT-MUM] that '29.4.3 In the present case, the appellant have deliberately contravened the provisions of Standards of Weights and Measures Act and the Packaged Commodity Rules made thereunder. Therefore, they have to suffer the consequences of the contraventions. For such contraventions the appellant cannot claim benefits under the provisions of Central Excise Act by holding that the appellant was ....
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....review and not the actual situation pertaining in a factory of clearance. It is also submitted that the statements of the director, as well as the employees, on applicability of Legal Metrology Act, 2011, and its predecessor statutes, do not give room for any doubt of the deliberate intent with which the clearances were effected. Indeed, according to him, the manner in which the director had conceded the enhancement of assessable value reinforces the case of the central excise authorities. Reliance has been placed by him on the decision in DSP Merrill Lynch Limited v. Commissioner of Service Tax, Mumbai [2016 (44) STR 436 (Tri. - Mumbai)] '5. At first glance, the case seems to be badly time barred in view of the fact that the demand for the period October, 1998 to March, 1999 was held to be time barred by the Tribunal in its Order appearing at 2007 (7) STR 59 (Tri.-Mumbai). But on a close reading of the judgment, we find that it was delivered on the basis that the High Court had directed CBEC to clarify the position, which was done in June, 2001. In the circumstances, it was held that respondent could not have known that the services rendered were in the nature of Manageme....
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....annot dream that the service tax was not paid. Even in a normal case, for an assessee who renders various services, the department comes to know of the value of services received only through the ST-3 Returns for a particular period. In case the ST-3 Returns do not indicate value of certain services, it will amount to suppression of facts. In the present case the appellant had declared the value of financial services for the period July, 2000 onwards in the ST-3 return for the period April-September, 2000, but they failed to declare the value of services rendered during the period April-June, 2000 in the same return. The system of service tax payment is such that department can check the factum of value of services only from what is declared in the ST-3 returns. In the present case, the fact that services having value were rendered became known to the department only when audit was conducted in 2002, and it was then discovered that the appellant had failed to declare the value of services rendered during the period April-June, 2000. Therefore, the judgments cited by the ld. Counsel cannot be relied upon in the facts of the present case. 5.1 The judgment in the case of HSBC....
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....fication which was done on 27-6-2001. It can even be said that the spirit of the Bombay High Court order was not followed by the appellant. Therefore, in our considered view, the extended period of limitation is invokable in the present case.' 7. We take note that statutory authorities for enforcement of Legal Metrology Act, 2011 have not initiated any action against the appellant herein. The contents, or lack thereof, in the returns prescribed under Central Excise Rules, 2000 does not find, a place in the impugned order or the show cause notice. 8. It is seen from the impugned order that elaborate submissions had been made on the aspect of limitation and, as pointed out by Learned Counsel, these appear to have been disposed of cursorily thus '34. Whether there is any willful suppression of material facts, on the part of the assessee in this case and whether extended period of limitation is invokable to demand short-paid Central Excise duty for the period beyond one year, in terms of proviso to Section 11A(U/ Section 11A(4) of the Act, as the case may be: In this regard, I find that the assessee have, interalia, contended that, they have been audited by the ....