Case: Collector Of Central Excise, Baroda Vs. Kosan Metal Products Limited

Revenue is the appellant herein. They manufacturers LPGF valves and regulators falling under tariff item 68 of the Central Excise Tariff. They was receiving brass rods manufactured by M/s. Bhandari Metal Corporation, Bombay and availed set off of duty as stipulated under Notification No. 178 of 1977 dated June 18, 1977. The brass rods were assessed under TI 68 during the period from July 24, 1978 to March 31, 1979. With effect from April 1, 1979 brass rods manufactured by M/s. Bhandari Metal Corporation, Bombay were assessed under TIA (1) (a), as mentioned in the relevant GP 1 of the manufacturer. It was, however, noticed by the Superintendent of Central Excise Range XV, Surat that they had received brass rods, the goods other than falling under tariff item 68 and had availed incorrect set off of duty amounting to Rs. 51, 261.88 under the said notification issued under Rule 8 (i) of the Central Excise Rules, 1944 (Rules for short) towards payment of duty on excisable goods falling under tariff item 68 and cleared during the period from July 24, 1978 to March 31, 1979. A show cause notice dated January 19, 1980 was issued to they by the Superintendent of central Excise Range XV, Surat requiring it to show cause as to why the duty amounting to Rs 51, 261.88 should not be recovered from it under Rule 10 of the Rules and as to why the penalty should not be imposed on it under Rule. The notice was issued on the ground that the brass rods were classified under TIA (1) (a) of the Tariff and, therefore, they was not eligible tof of duty under the said notification. In reply, they contended that the said notice under Rule 10 had not been issued to it within time and that there had been no fraud, collusion or wilful misstatement or suppression of facts on its part and that it had correctly availed of thef of duty  2. The Assistant Collector of Central Excise, Surat after considering the matter confirmed the demand for duty by his order dated February 9, 1981. The case of the revenue was the respondent company had utilised wrongf of duty on the raw materials falling under TI other than TI 68 and the Range Superintendent, Surat had pointed out short payment of duty involving Rs. 38, 460.12 on2 returns for the months of April 1979 to August 1979. The demand of Rs. 38, 460.12 was confirmed by the Assistant Collector by his order dated February 20, 1981. The appeals against the aforesaid orders filed by the respondent were rejected. The respondent, thereafter, filed two appeals before the Tribunal. The Tribunal referred to the facts of the case set out hereinbefore

Reasoning:
4. The said section provides that when any duty of excise has not been levied or paid or has beend or erroneously refunded, a notice may be served on the concerned person within a period of six months. In the instant case, the time taken for the service of the notice is beyond a period of six months. The Tribunal took the view that the classification lists had been finalised by the Bombay Collectorate and the Assistant collector, Surat had no authority ton those assessments. It referred to a decision of it in M/s. Jay Industries, Hyderabad v. Collector of Central Excise, Hyderabad. In the aforesaid view of the matter, the Tribunal allowed the claim of the respondent5. We have considered the contentions urged and do not find any ground which supports the allegation that there had been fraud, collusion or any wilful misstatement or suppression of facts on the part of the respondent. Therefore, SectionA clearly applies to the facts of the instant case. In that view of the matter, the appeals were correctly allowed by the Tribunal. On careful examination of the facts of the case and the contentions raised, we are of the opinion there is no merit in the appeal before us.