LawDistill
Supreme Court of India

COLLECTOR OF CENTRAL EXCISE, HYDERABAD vs CHEMPHAR DRUGS & LINIMENTS, HYDERABAD on 14 February, 1989

Cites 0 provisionsCites 0 judgmentsCited by 12
Official PDFBench Sabyasachi Mukherjee, Srinivasachar Ranganathan
PETITIONER:
COLLECTOR OF CENTRAL EXCISE, HYDERABAD.
Vs.
RESPONDENT:
CHEMPHAR DRUGS & LINIMENTS, HYDERABAD.
DATE OF JUDGMENT14/02/1989
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
RANGNATHAN, S.
CITATION:
1989 AIR 832 1989 SCR (1) 711
1989 SCC (2) 127 JT 1989 (1) 417
1989 SCALE (1)436
CITATOR INFO :
RF 1989 SC2278 (12)
ACT:
Central Excise and Salt Act, 1944/Central Excise Rules,
1944: Section 11A/Rules 10 and 173 Q--Manufacturer of patent
and proprietary medicines--Levy and demand of excise
duty--When arises-Limitation period of five years for rais-
ing demand--Condition for applicability.
HEADNOTE:
The respondent-firm manufactured patent and proprietary
(P & P) medicines failing under T.I. 14E and also pharmaco-
poeial preparations falling under T.I. 68 of the Central
Excise Tariff of an aggregate value of Rs.20,59,338.60 and
cleared the same during the period 1.4.79 to 31.3.80 without
payment of duty, availing the benefit of exemption of excise
duty under Notification No. 80 of 1980. The respondent also
cleared, during the period from 1st April, 1980 to 29th
October, 1980 (P & P) medicines failing under T.I.14E valued

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1632 of 1988.

From the Order dated 8.1.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. SD SB/T 716/81-C (Order No. 17/88-C.)

A.K. Ganguli, A. Subba Rao and Mrs. Sushma Suri for the Appellant.

A.N. Haksar, R. Karanjawala, Ms. M. Arora and Mrs. M. Karanjawala for the Respondent. The Judgment of the Court was delivered by

SABYASACHI MUKHARJI, J. This appeal is under section 35(L)(b) of the Central Excises and Salt Act, 1944 (hereinafter called ’the Act’) against the order dated 8th January, 1988 passed by the Customs, Excise & Gold (Control) Appellate Tribunal. The issue involved in this appeal was whether in the facts and the circumstances of the case, the Tribunal was legally justified in restricting the demand of duty to six months prior to the date of issue of show-cause notice, particularly in a case where longer period was invoked on the ground of suppression of information in the declaration furnished by the respondent.

The respondent manufactured patent and proprietary (P & P) medicines falling under T.I. 14E and also pharmacopoeial preparations falling under T.I. 68 of the Central Excise Tariff of an aggregate value of Rs.20,59,338.60 and cleared during the period of 1.4.1979 to 31.3.1980, the same without payment of duty, availing the benefit of exemption notification No. 80/80.

Under the provisions of sub-clause (ii) of clause 2 of notification No. 80/80 dated 19th June, 1980 and sub-clause (iii) of clause (a) of notification No. 71/78 dated 1.3.1978 the manufacturer would not be eligible for exemption under the two notifications in respect of clearance of patent or proprietary medicines from 1st April, 1980 since the notification would not apply to a manufacturer who manufactures excisable goods falling under more than one item of the 1st Schedule of the Act, and the aggregate value of the clearness of all such excisable goods by the manufacturer or on his behalf are cleared for home consumption from one or more factories during the preceding financial year had exceeded Rs.20 lakhs.

The factory had cleared during the period from 1st April, 1980 to 29th October, 1980 (P & P) medicines falling under T.I. 14E valued at Rs.4,32,050.09. The central excise duty payable on the goods removed was Rs.55,302.01. The respondent filed a declaration for exemption under notification No. 71/78 dated 1.3.1978, and furnished particulars of only the value of P & P medicines manufactured and cleared by it during the preceding financial year i.e. 1979-80, and the respondent did not furnish the particulars of the value of the goods cleared under Tariff item 68 during the financial year 1979-80. It was noticed that the manufacturer did not file any declaration under Notification No. 111/ 78 dated 9.5. 1978 claiming exemption from the licensing control.

However, on 30th July, 1980 the firm filed a classification list in respect of P & P medicines claiming exemption under notification No. 80/80. A show-cause notice was issued to the respondent who was asked to explain as to why excise-duty in respect of Patent & Proprietary medicines manufactured and cleared by it should not be demanded under proviso (a) to Rule 10(1) of the Central Excise Rules and why penalty should not be imposed on it under rule 173Q of the Central Excise Rules, 1944 for having cleared the goods without payment of duty in contravention of Rule 173Q (a) and (d) of the Central Excise Rules.

After submission of the reply by the respondents, the Collector of Central Excise held the respondents to be ineligible for the benefit of the two notifications and therefore duty was demanded from them in respect of the goods cleared by them for the period 1.4.1980 to 29.10. 1980. The Collector Was of the view that in view of the respondents’ failure to reveal the correct position, they were liable. The Collector was of the view that the time limit under rule 10 (section 11A) would run for 5 years. The relevant portion of section 11A of the Act is as follows:

"(11-A). Recovery of duties not levied or not

paid or short-levied or short-paid or errone-

ously refunded.--(1) when any duty of excise

has not been levied or paid or has been

short-levied or short-paid or erroneously

refunded, a Central Excise Officer may, within

six months from the relevant date, serve

notice on the person chargeable with the duty

which has not been levied or paid or which has

been short-levied or short-paid or to whom the

refund has erroneously been made, requiring

him to show cause why he should not pay the

amount specified in the notice:

Provided that where any duty of excise has not

been levied or paid or has been short-levied

or short-paid or erroneously refunded by

reason of fraud, collusion or any wilful

misstatement or suppression of facts, or

contravention of any of the provisions of this

Act or of the rules made thereunder with

intent to evade payment of duty, by such

person or his agent, the provisions of this

sub-section shall have effect, (as if for the

words "Central Excise Officer", the words

"Collector of Central Excise", and) for the

words "six months", the words "five years"

were substituted."

The respondent filed an appeal before the Tribunal. The Tribunal considered the matter and noted that the appellant’s case was that the demand for duty for the period beyond six months was time barred; and the respondent’s case was that the demand for the period beyond 6 months from the receipt of show-cause notice, was time barred inasmuch as there was no suppression or misstatement of facts by the appellant with a view to evade payment of duty. In support of its claim the respondent produced classification list approved by the authorities during the period 1978-1979, and also produced extracts from the survey register showing that the officers had been visiting its factory from time to time and also taking note of the previous goods manufactured by the respondent. The plea of the revenue was that there was suppression and/or mis-declaration and/or wrong information furnished in the declaration itself. The Tribunal noted the facts as follows:

"We observe it is not denied by the Revenue

that the appellants had been submitting their

classification lists from time to time showing

the various products manufactured by them

including those failing under 14E and 68 also

these containing alcohol. The officer who

visited the factory as seen from the survey

register at the factory also took note of the

various products being manufactured by the

appellants. It cannot be said that the appel-

lants had held back any information in regard

to the range and the nature of the goods

manufactured by them. The appellants have

maintained that the value of the exempted

goods under T.I. 68 and also value of medi-

cines containing alcohol, according to their

interpretation, were not required to be in-

cluded for the purpose of reckoning of the

total excisable goods cleared by them. There

is nothing on record to show that the appel-

lants non-bonafidely held back information

about the total value of the goods cleared by

them with a view to evade payment of duty.

Their explanation that it was only on the

basis of their interpretation that the value

of the exempted goods were not required to be

included that they did not include the value

of the exempted goods which they manufactured

at the relevant time and failing under T.I. 68

is acceptable in the facts of that case. The

Departmental authorities were in full knowl-

edge of the facts about manufacture of all the

goods manufactured by them when the declara-

tion was filed by the appellants. That they

did not include the value of the product other

than these falling under T.I. 14E manufactured

by the appellants has to be taken to be within

the knowledge of the authorities. They could

have taken corrective action in time. We

therefore find there was no warrant in invok-

ing longer time limit beyond six months avail-

able for raising the demand. So far as the

demand for the period within six months reck-

oned from the date of receipt of the show

cause notice is concerned, we observe that the

appellant’s case is that value of the goods

under 68 was not required to be included but

the Revenue’s plea is that only value of the

specified goods under notification No. 71/78

and 80/80 was not required to be excluded."

On the aforesaid view the Tribunal came to the conclusion that the demand raised on this for a period beyond 6 months was not maintainable.

Aggrieved thereby, the revenue has come up in appeal to this Court. In our opinion, the order of the Tribunal must be sustained. In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to subsection 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, beyond the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal came to the conclusion that the facts referred to hereinbefore do not warrant any inference of fraud. The assessee declared the goods on the basis of their belief of the interpretation of the provisions of the law that the exempted goods were not required to be included and these did not include the value of the exempted goods which they manufactured at the relevant time. The Tribunal found that the explanation was plausible, and also noted that the Department had full knowledge of the facts about manufacture of all the goods manufactured by the respondent when the declaration was filed by the respondent. The respondent did not include the value of the product other than those falling under Tariff Item 14E manufactured by the respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence.

In that view of the matter and in view of the requirements of section 11A of the Act, the claim had to be limited to a period of six months as the Tribunal did. We are, therefore, of the opinion that the Tribunal was fight in its conclusion. The appeal therefore fails and is accordingly dismissed.

In the facts and the circumstances of the case, the parties will pay and bear their own costs. N.P.V. Appeal dismissed.