ORDER
U.L. Bhat, J. (President)
1. Appellant, an undertaking of the Himachal Pradesh Government was engaged in the manufacture of pre-stressed concrete poles (PCC) for supply to Himachal Pradesh State Electricity Board as per contract dated 22-6-1984. Appellant paid duty on the price shown in the contract in respect of clearance effected during the period 23-11-1984 to 19-4-1986. The contract contained a clause for escalation of price. As in cases of the price of raw materials, appellant issued debit note dated 6-1-1986 for Rs. 1,10,148.45 in respect of the goods manufactured and supplied during that period. Show cause notice dated 14-9-1989 was issued to the appellant proposing demand of duty on the differential price and alleging deliberate concealment of the contract and issue of debit note with intent to evade duty. Appellant resisted the notice pleading that all along the duty on the differential price was being paid only after realisation of the differential price on the raw material and this was within the knowledge of the Department and appellant bona fide believed that duty need to be paid only after realisation of the differential price and there was no wilful mis-statement and suppression of facts with the intent to pay duty. The Addl. Collector overruling this contention, confirmed the demand. Hence the present appeal by the manufacturer.
2. There is no dispute that the contract contained an escalation clause according to which on the increase in the price of raw material the price of PCC poles will escalate as indicate therein. There is also no dispute that price of raw material did increase and the escalation clause took effect and appellant issued debit note for the differential price. According to the appellant, the buyer had not accepted the debit note and did not make any payment.
3. In the case of Hyderabad Industries Ltd. v. CCE., Patna -1997 (93) E.L.T. 692 (Tribunaiy, we considered the case where the manufacture issued a debit bill to the buyer based on escalation clause in the contract. We pointed that certain aspects required consideration and remanded the case for fresh disposal. In that connection, we observed that the fact that the manufacturer had raised the debit bill may ordinarily indicate that the amount covered by the debit bill would be part of the price. There may be a situation where an error is committed in a debit bill or debit bill is raised erroneously; these instances are instances where the price escalation clause could not apply. That being so, raising of the debit bill had no impact on the assessable value. Appellant in the present appeal has no case that the buyer had objected to the debit note on the ground that the escalation clause could not be invoked or there was error in the debit note. Appellant having raised the debit note therein it must be ordinarily follow that the amount covered by the note would be part of the assessable value. Since the appellant has no case that the buyer had objected to the bill on the ground of non-application of the escalation clause or on account of any error in the note, it should be held that the amount covered would be the part of the assessable value. The mere fact that the buyer does not pay the price wholly or in part, does not mean that unpaid part of the price is to be disregarded and is not to be included in the assessable value. If any part of the price is paid it is the duty of the manufacturer to pay duty and take steps to recover the unpaid part from the buyer. Postponement or non-payment of the price wholly or in part will not lead to depression of assessable value to the extent of the amount not paid. The appellant has no case on merits.
4. It is contended in the show cause notice dated 14-9-1989 issued for the period from 23-11-1984 to 19-4-1986 was barred by time. Reliance is placed in this connection vide letters dated 2-6-1984,20-4-1987,6-5-1987 and 27-6-1988 written by the appellant to the jurisdictional Superintendent informing him about the price escalation clause, the issue of debit note and non-payment by the buyers and assuring payment of duty on realisation of the amount covered by the debit note. However, the appellant did not specifically deny to averment in the show cause notice of concealment of the contract or issue of the debit note at the relevant time. In the case of Indian Aluminium Cables Ltd. v. CCE., New Delhi -1997 (95) E.L.T. 386 (Tribunal), dealing with the question of bar of limitation for refund claim in a case where the contract contained an escalation clause, the Tribunal held that the prices agreed and prices declared must be regarded as provisional, inasmuch as they were subject to the price variation clause. The provisionality also attaches to the approval granted to the price lists and provision of limitation contained in Section 11B of the Central Excise Act, 1944 will not be attracted.
Going by this principle, we hold that the show cause notice cannot be regarded as time-barred. The appeal is dismissed.