TaxTMI 
TaxTMI 
TaxTMI 
2006 (3) TMI 184
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....th the Customs, Excise and Gold (Control) Appellate Tribunal in terms of Section 35B of the Central Excises and Salt Act, 1944 and that the appeal may be filed within three months from the date of communication of the order. In our view, therefore, the writ petition is liable to be dismissed on this ground alone. 3. However, since the writ petition pertains to the year 1988 and remained pending before this court for more than 17 years, we thought it fit to look into the merits of the matter as well. 4. The petitioner carries on manufacturing activities at the factory premises situated at 2-C & D, Government Industrial Estate, Kandivli (West), Bombay-67 as the sole proprietor of firm M/s. S.J. Shah & Sons. The petitioner is also the sole proprietor of another concern known as Chandan Industries (India). Both the concerns viz. M/s. S.J. Shah & Sons and M/s. Chandan Industries (India) operate from the same place. It is petitioner's case that he received an order from M/s. Nuclear Fuel Complex, Hyderabad for the supply of Extrusion dies. In order to determine the proper classification of the Extrusion dies and to ascertain the duty liability thereon, he approached the department and ....
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....tral Excise (respondent No. 2) was constrained to issue show-cause notice dated 20th February, 1986 to the petitioner on the ground of violation of Rules 174, 173B, 173C, 173F, 173G(1) read with 9(1), 173G(2) read with 52A, 173G(4) read with 226 of the Central Excise Rules, 1944. The notice to show-cause dated 20th February, 1986 reads thus :- "NOTICE TO SHOW CAUSE : WHEREAS it appears that Shri RAMNIKLAL SHANKARLAL SHAH, (hereinafter referred as R.S. Shah) Proprietor of M/s. Chandan Industries, M/s. S.J. Shah & Sons and M/s. Cast Fab Industries, having his office at Goumukh Bhavan, Masjid Bunder Road, Bombay-400 009, and factory at Plot No. 2CD, G.I.Estate, Kandivli (W), Bombay-400 067, has contravened the provisions of Section 6 of the Central Excises and Salt Act, 1944, read with rule 174 of the Central Excise Rules, 1944, rule 173B, rule 173C, rule 173F, rule 173G(1) read with rule 9(1), rule 173G(2) read with rule 52A, rule 173G(4) read with rule 53 and rule 226 of Central Excise Rules, 1944, inasmuch as he manufactured and cleared excisable goods falling under Tariff item No. 51A, and Tariff Item No. 68, during the period January, 1980 to December 1984, without payment of C....
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....se Rules, 1944, read with proviso to sub-section (1) of section 11A of the Central Excises and Salt Act, 1944 : (2) Penalty should not be imposed on him under rule 173Q(1) read with rule 52A and rule 226 ibid: (3) An order should not be passed for confiscation of land, building, plant and machinery and materials used in connection with the manufacturer, storage and removals of the aforesaid T.I. 51A and T.I. 68 goods under clause (2) of rule 173Q ibid: Shri R.S. Shah, should also indicate in his written explanation whether he wishes to be heard in person before the case is adjudicated. He is further directed to produce at the time of showing cause all the evidence upon which he intends to rely in support of his defence. If no cause is shown against the action proposed to be taken within one month of the receipt of this notice and the addendum to the notice to be issued or if he does not appear before the adjudicating authority when the case is posted for hearing the cause will be decided on the basis of evidence on record. The amount of duty will be quantified as soon as the information regarding manufacture and clearances is submitted by Shri R.S. Shah. This notice is issue....
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....xcisable goods exceeded Rs. 1,00,000/- but gave option to the petitioner to pay a fine of Rs. 1,00,000/- in lieu of confiscation of the plant and machinery. 8. The learned counsel for the petitioner submitted that there was no fraud perpetuated by the petitioner upon the revenue and that there was genuine mistake on the part of the petitioner in getting clearances of the excisable goods manufactured by its firm M/s. S.J. Shah & Sons under Tariff Item 68. He submitted that the extended period could not have been invoked by the department as there was neither fraud nor intent to evade payment of duty on the part of the petitioner. Relying upon the judgment of the Apex Court in the case of Tamil Nadu Housing Board v. Collector of Central Excise, Madras, 1994 (74) E.L.T. 9, the learned counsel submitted that the burden to prove fraud and the intent to evade payment of duty lay on the department which they failed to discharge and, therefore, the limitation for extended period could not have been invoked. The learned counsel also relied upon the judgment of the Supreme Court in the case of Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay, 1995 (78) E.L.T. 401. The ....
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....to that effect. The petitioner before the authority admitted that he did not inform the department regarding the calculation of duty from the customer. The Collector, Central Excise in his order recorded that on enquiry with M/s. Nuclear Fuel Complex, Hyderabad, it was revealed that the petitioner had supplied the excisable goods valued at Rs. 36,28,474/- and had recovered Central Excise duty to the tune of Rs. 2,55,119.25 from them alone. The names of other customers to whom excisable goods were supplied by the petitioner were not disclosed. If this is not fraud with intention to evade excise duty then what else it is. The facts that came on record before the Collector of Central Excise showed that there was suppression and fraud on the part of the petitioner and also intent to evade payment of duty. In these facts, the Collector of Central Excise cannot be said to have erred in invoking limitation for extended period. The judgments of the Supreme Court in the cases of Tamil Nadu Housing Board and Pushpam Pharmaceuticals Company, relied upon by the learned counsel for the petitioner, do not help in the light of the facts that we have indicated above. 12. It is pertinent to note t....