1. Appellant is absent in spite of notice of hearing but has sent a request for decision of the appeal on merits. We have heard Shri M.Ali, JDR and perused the papers.
2. Appellant, engaged in the manufacture of acetylene gas packed in metal cylinders containing required quantity of acetone filed price lists declaring the wholesale prices. The prices having been approved, the goods were being cleared on payment of appropriate duty. It was subsequently found that appellant was collecting by separate debit notes certain sums of money towards "acetoning charges" and had failed to pay duty on such charges during the period from 1-4-1982 to 30-9-1982. The collection of such extra charges was not disclosed in the price lists and was not brought to the notice of the department.
Accordingly, show cause notice dated 3-6-1983 was issued proposing demand of differential duty on the quantum of "acetoning charges".
Appellant resisted the notice. However, the Additional Collector confirmed the demand. Hence the appeal.
3. The Additional Collector referred to certain passages in "Materials Hand Book" by George S. Brandy and Henry R. Clauser and "Marks Standard Hand Book for Mechanical Engineers" wherein it was stated that acetone is an active solvent for gases. He came to the conclusion that acetone in the cylinder is used as a solvent. This is also seen in the document of confirmation of the sale, IS Specification and Gas Cylinder Rules, 1981. He came to the conclusion that acetylene gas can be marketed only in a dissolved condition when packed in suitable containers and therefore, the "acetoning charges" should be part of the assessable value of the excisable product cleared by the appellant. The show cause notice had also demanded duty on rental charges collected by appellant for the cylinders in which the product was packed for supply to buyers.
The Additional Collector confirmed the demand in respect of "acetoning charges" but gave up the demand on rental charges on account of bar of limitation. This order is now challenged.
4. The connection between acetone and acetylene gas has been considered by the Tribunal in the decision in Collector of Central Excise v. Rishi Gases Pvt. Ltd. 1989 (42) E.L.T. 423 (Tribunal). The Tribunal referred to Kirk Othmar's Encyclopaedia of Chemical Technology which stated that acetone is a solvent for acetylene and that a specified quantity of solvent is added to cylinders as it dissolves many times its own volume of acetylene and its purpose is to increase the amount of acetylene that may be safely charged and shipped. It was also noticed that acetylene is highly explosive substance and cannot be marketed without acetone. It is thus clear that the excisable product manufactured and cleared by the appellant is acetylene gas dissolved in acetone and packed in metal containers. That being so, acetoning charges should be part of the assessable value.
5. Appellant had raised a contention that the show cause notice was barred by time inasmuch it did not specifically invoke the proviso to Section 11A(1) of the Central Excise Act, 1944. While it is true that there is no specific reference to the provision of law, the averments in the show cause notice, as pointed out in the impugned order, clearly spelt out the allegation of suppression of the fact that besides the price shown in the price lists appellant was collecting separately acetoning charges. The appellant could have shown the acetoning charges in the price lists and claimed deduction; that was not done. There was clear suppression of material facts which could only have been with intent to evade duty.