Collector of C. Ex. Vs. Indira Rcc Spum Pipe Industries - Court Judgment

Excerpt:
1. this is an appeal by revenue against the order-in-appeal passed by the collector of central excise (appeals) holding that the demand confirmed by the assistant collector for the period beyond six months was time barred under section 11a of the central excise act, 1944. he had held that as a notice proceeded on the basis of the allegation that there was mis-declaration of assessable value which constituted wilful suppression of fact the assistant collector should not have decided the case and that the show cause notice also should not have been issued by the superintendent under the proviso to section 11a of the central excise act for invoking the extended period beyond six months.2. arguing the case of the appellant commissioner, shri k. srivastava, learned sdr stated that at the material time when the show cause notice was issued and adjudicated by the assistant collector, there was no statutory requirement that the notice should be issued by the collector or that the adjudication also should be by the collector. the amendment to that effect requiring the collector to issue the notice and to adjudicate cases involving suppression, wilful misstatement etc. came into effect on 25-12-1985. in view of this position, the finding of the collector (appeals) that the superintendent could not have issued the show cause notice for the extended period alleging suppression of fact and that the adjudication of the case by the assistant collector was not proper needs to be set aside.3. respondent is not present for the hearing. however, a telegram has been received stating that the respondent is unable to attend the hearing and requesting for decision on merits.4. we have considered the submission and perused the record. the contention raised against the finding of the collector (appeals) is valid and we accept the same. the charge of suppression relates to the non-inclusion and non-mention of the loading charges incurred within the factory at the time of loading the goods in the transport vehicle for despatch. it has been correctly held by the collector (appeals) that such charges are not part of freight and are incurred prior to the delivery at the factory gate. since the fact that this item of expenditure was not disclosed in the excise record or invoice was the factor for the department not to recover duty on correct basis. we accept the plea raised in the appeal that the collector (appeals) erred in setting aside part of the demand for the period beyond six months only on the ground that the suprein-tendent did not have the jurisdiction to issue the notice and that the assistant collector did not have the jurisdiction to decide the case. accordingly, we set aside that part of the finding of the collector (appeals) holding the notice to be barred by limitation and the notice to have been issued by a non-competent officer. we, therefore, restore the order-in-original passed by the assistant collector. the appeal by the department is allowed.

Judgment:
1. This is an appeal by Revenue against the order-in-appeal passed by the Collector of Central Excise (Appeals) holding that the demand confirmed by the Assistant Collector for the period beyond six months was time barred under Section 11A of the Central Excise Act, 1944. He had held that as a notice proceeded on the basis of the allegation that there was mis-declaration of assessable value which constituted wilful suppression of fact the Assistant Collector should not have decided the case and that the show cause notice also should not have been issued by the Superintendent under the proviso to Section 11A of the Central Excise Act for invoking the extended period beyond six months.

2. Arguing the case of the appellant Commissioner, Shri K. Srivastava, learned SDR stated that at the material time when the show cause notice was issued and adjudicated by the Assistant Collector, there was no statutory requirement that the notice should be issued by the Collector or that the adjudication also should be by the Collector. The amendment to that effect requiring the Collector to issue the notice and to adjudicate cases involving suppression, wilful misstatement etc. came into effect on 25-12-1985. In view of this position, the finding of the Collector (Appeals) that the Superintendent could not have issued the show cause notice for the extended period alleging suppression of fact and that the adjudication of the case by the Assistant Collector was not proper needs to be set aside.

3. Respondent is not present for the hearing. However, a telegram has been received stating that the respondent is unable to attend the hearing and requesting for decision on merits.

4. We have considered the submission and perused the record. The contention raised against the finding of the Collector (Appeals) is valid and we accept the same. The charge of suppression relates to the non-inclusion and non-mention of the loading charges incurred within the factory at the time of loading the goods in the transport vehicle for despatch. It has been correctly held by the Collector (Appeals) that such charges are not part of freight and are incurred prior to the delivery at the factory gate. Since the fact that this item of expenditure was not disclosed in the Excise record or invoice was the factor for the department not to recover duty on correct basis. We accept the plea raised in the appeal that the Collector (Appeals) erred in setting aside part of the demand for the period beyond six months only on the ground that the Suprein-tendent did not have the jurisdiction to issue the notice and that the Assistant Collector did not have the jurisdiction to decide the case. Accordingly, we set aside that part of the finding of the Collector (Appeals) holding the notice to be barred by limitation and the notice to have been issued by a non-competent officer. We, therefore, restore the order-in-original passed by the Assistant Collector. The appeal by the department is allowed.