Full Judgment
2. The Collector (Appeals) accepted this submission. He said that Section 47 does not override Section 11A and that in the absence of any of the factors specified in proviso to Sub-section (1) of Section 11 A, the notice ought to have been issued within six months from the relevant date. He, therefore, held that notice to be barred by limitation and allowed the appeal. Hence this appeal.
3. The contention in the appeal is that the relevant date is to be calculated as provided in Clause (c) of Sub-clause (a) of Clause (ii) of Sub-section (3) of Section 11A. The Departmental Representative contends that the duty became recoverable in terms of the Explanation introduced to Section 4(4)(d)(ii) as a result of the amendment introduced in Section 47 of the Finance Act, 1982 and that therefore it was to be paid on the date of commencement of that Act. Hence the notice issued within six months from the enactment of that Act is within time.
4. I do not find it possible to accept this argument. The provision of Section 11A(3)(ii) is reproduced below : (a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid - (A) where under the rules made under this Act a periodical return, showing particulars of the duty paid on the excisable goods removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund." It is evident that Clause (C) would have to be invoked, "in any other case" that is where Clauses (A) and (B) would not apply. Now, the goods in question were excisable and had been cleared on payment of duty. The effect of the amendment made to Section 4 of the Act was to change the basis of calculation of assessable value by limiting the extent of duty that would be deducted from the sale price. Instead of deducting the duty payable at the statutory rate, the deduction would be limited to duty payable already the exemption Notification 120/77. The nature of the goods, or their excisability was not altered by this amendment.
Therefore, under the rules, RT 12 returns referred to Clause (A) were required to be filed and would, no doubt, have been filed. The relevant date therefore would, in such cases, be reckoned by reference to Clause (A) and if the returns were not filed on the last date of such return was to be filed, i.e. the 7th of the month following the month in which the goods were cleared.
5. The contention that notice could be issued within six months from coming into force of the Finance Act, 1982 is clearly nothing but a claim that the provision of Section 11 A, provision will not apply. In the light of the Supreme Court decision in J.K. Spinning and Weaving Mills Ltd. v. Union of India referred to above, which would clearly apply to the facts of this case, this suggestion is therefore not acceptable.