Case: M/s. Ballarpur Industries Limited Vs. Assistant Collector of Customs and Central Excise and Others

1. The appellant, a Public Limited Company, has preferred these appeals against the decision of the High Court dismissing its writ petitions by which the appellant sought to question the decision of the Revenue levying excise duty under Rule 17(4) of the Central Excise Rules, 1944. The said show-cause notice was issued under Rule 10, as in force prior to 6-8-1977 (sic 1976) which inter alia provided that "when duties or charges have been short-levied through inadvertence, error, collusion or misconstruction on the part of an officer, or through misstatement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such cause, erroneously refunded, the proper officer may, within three months from the date on which the duty or charge was paid or adjusted in the owners account - current, if any, or from the date of making the refund, serve a notice on the person from whom such deficiency in duty or charges is or are recoverable requiring him to show cause to the Assistant Collector of Central Excise why he should not pay the amount specified in the notice" * 2. Under Rule 173-J, in the case of self-removal, the time-limit for recovery of short levy or refund of excess levy, etc., was fixed as one year instead of three months as stated in Rule 10. 3. There is no doubt that in the instant case the show-cause notice was issued within time. Although, the show-cause notice was for a longer time it was confined to one year only and therefore, instead of the amount of Rs 4, 37, 074.60 demanded in the show-cause notice, the amount was reduced to Rs 47, 173.37.4. Two contentions were raised in the writ petition and the very same contentions have been raised in these appeals. Counsel for the appellant, however, fairly conceded that so far as the first contention based on the expression "other legal proceedings" in Section 40(2) of the Central Excises and Salt Act, is concerned, the same stands squarely covered against the assessee by the decision of this Court in Asstt. CCE v. Ramdev Tobacco Co. [ 1991 (2) SCC 119 ]. We, therefore, need not detain ourselves on the first contention5. The second contention urged on behalf of the appellant is that the Department having accepted the classification of goods and the price list year after year was estopped from questioning the same as Rule 10 of the Rules did not permit change in the classification list retrospectively. Reliance was placed on the decision of this Court in Rainbow Industries (P) Ltd. v. CCE [ 1994 (6) SCC 563 : 1994 (74) ELT 3 ] wherein this Court held that once the Department accepted the price list, acted upon it and the goods were cleared with the knowledge of the Department, then in the absence of any amendment in law or judicial pronouncement, the reclassification should be effective from the date the Department issued the show-cause notice. The reason for it is, say their Lordships, clearance with the knowledge of the Department and not intentional evasion of duty. On this line of reasoning it was held in that case that the appellant was not liable to pay duty in respect of the past period prior to the issuance of show-cause notice to the appellant. We find it difficult to persuade ourselves to this line of reasoning. Although, in that case the Court did not notice Rule 10 as it stood prior to 6-8-1976 even though the show-cause notice in that case was dated 16-10-1976, reference was made to Section 11-A of the Act which is more or less (substantially) the same. Under the said provision when any duty of excise is found to have been not levied or paid or has been short-levied or short-paid or erroneously refunded, a show-cause notice could be issued on the person chargeable with the duty within six months from the relevant date requiring him to show cause why he should not pay the amount specified in the notice. The expression "relevant date" has been defined in clause (ii) of sub-section (3) of Section 11-A. On the plain reading of the said provision as also Rule 10 as it stood prior to 6-8-1976 the show-cause notice which could be issued within the time-limit prescribed under the relevant provision could only be in relation to the duty of excise for a period prior to the issuance of show-cause notice. There could be no reason for the issuance of a show-cause notice for the period subsequent to the notice as in the case the necessary corrective action could always be taken. But Rule 10 with which we are concerned as well as Section 11-A to which a reference is made in the case of Rainbow Industries, the show-cause notice which must be issued within the time-frame prescribed in the said provisions must relate to a period prior thereto as the purpose of the show-cause notice is recovery of duties or charges short-levied, etc. We, therefore, find it difficult to accept the contention that the ratio of the decision in Rainbow Industries [ 1994 (6) SCC 563 : 1994 (74) ELT 3 ] is that under Section 11-A past dues cannot be demanded. We must, therefore, reject that contention. The observations in the said decision must be confined to the facts of that case6. 5.

Decision reasoning: 0[ds]3. There is no doubt that in the instant case thenotice was issued within time. Although, thenotice was for a longer time it was confined to one year only and therefore, instead of the amount of Rs 4, 37, 074.60 demanded in thenotice, the amount was reduced to Rs 47,find it difficult to persuade ourselves to this line of reasoning. Although, in that case the Court did not notice Rule 10 as it stood prior toeven though thenotice in that case was datedreference was made to Sectionof the Act which is more or less (substantially) the same. Under the said provision when any duty of excise is found to have been not levied or paid or has beenid or erroneously refunded, anotice could be issued on the person chargeable with the duty within six months from the relevant date requiring him to show cause why he should not pay the amount specified in the notice. The expression "relevant date" has been defined in clause (ii) of(3) of SectionOn the plain reading of the said provision as also Rule 10 as it stood prior tose notice which could be issued within theprescribed under the relevant provision could only be in relation to the duty of excise for a period prior to the issuance ofnotice. There could be no reason for the issuance of anotice for the period subsequent to the notice as in the case the necessary corrective action could always be taken. But Rule 10 with which we are concerned as well as Sectionto which a reference is made in the case of Rainbow Industries, thenotice which must be issued within theprescribed in the said provisions must relate to a period prior thereto as the purpose of thenotice is recovery of duties or chargesetc. We, therefore, find it difficult to accept the contention that the ratio of the decision in Rainbow Industries [ 1994 (6) SCC 563 : 1994 (74) ELT 3 ] is that under Sectionpast dues cannot be demanded. We must, therefore, reject that contention. The observations in the said decision must be confined to the facts of that case