ORDER
Gowri Shankar, Member (T)
1. This appeal is against the order of the Additional Collector of Central Excise, Patna by which he has confirmed the demand of Central Excise duty of Rs. 62,874.00 issued to the appellant company and imposed a penalty on it of Rs. 5000/- under Rule 173 of the Central Excise Rules, 1944.
2. We have heard Shri R.K. Jain, Consultant for the appellant and Shri Sharad Bhansali, SDR for the department. Shri Jain argued that each of the show cause notices was barred by limitation. He cited the Tribunal’s decision in the case of ELMO Engineering Works, Madurai v. Collector of Customs, Madras 1984 (17) E.L.T. 431 (Tribunal). Shri Bhansali supports the Additional Collector’s order.
3. Notification 71/78-C.E., as it stood on 1-3-1978, exempted clearances of an assessee upto a value of Rs. 5 lakhs during the financial year 1978-79. The exemption was not available if the aggregate value of the clearances by the assessee between 1st April, 1977 and 28th February, 1978 had exceeded Rs. 13.75 lakhs. Explanation I to the notification clarified that the expression “value” means value determined in accordance with Section 4 of the CESA, 1944. The appellant claimed the benefit of this notification and made a declaration, which is dated 18-3-1978. In this declaration, the value of clearances between April 1977 and February 1978 was stated to be Rs. 13,55,708.50. The declaration was specific that this value was under Section 4. The Asstt. Collector of Central Excise informed the appellant by his letter dated 3-4-1978 that, on the basis of the declaration, it was entitled to avail of the exemption. Notification 71/78-C.E. was amended by Notification 91/78 dated 31-3-1978. The effect of the amendment was that for the purposes of computation of value, either the value under Section 4 or the tariff value, if any, was to be taken into account. The basis for the proceedings against the appellant is that, tariff value had been notified for the goods cleared by it, and, if that value were taken, it would not be eligible for the benefit of notification for he reason that the value of clearances between April 1977 and February 1978 would have exceeded Rs. 13.75 lakhs.
4. Four show cause notices demanding duty were issued to the appellant. They are dated 25-5-1981, 24-8-1981, 2-11-1981 and 13-4-1982. Each of the notices demands the same amount of duty and has stated to be issued in continuance of the first. It is only notices dated 2-11-1981 and 13-4-1982 which set out in clear terms the basis for demand. Only the last show cause notice alleges wilful mis-statement or suppression of the fact that it is tariff value which was to be taken into account for computing the value of clearances from April 1977 to February 1978.
5. Each of the show cause notices has been issued beyond the period of six months from the relevant date. None of them, except the last one, cites the existence of any facts which would justify invoking the extended period in Section 11-A. The last show cause notice claims that the appellant had wilfully misstated/suppressed the facts that it was the tariff value which was to be taken for computing the value of clearances. This allegation has been accepted by the Additional Collector in his order. A plain reading of the declaration filed by the appellant will show that it had specifically stated that the value of clearances was according to Section 4. The appellant had also stated in the declaration that it was enclosing a statement “showing in detail the production, clearances and value of clearances under Section 4”. The declaration has been signed on 18-3-1978, but it is not clear on what date it was received by the Superintendent or the Assistant Collector. It would appear that the amended notification dated 31-3-1978 was not received by the Assistant Collector himself on 3-4-1978, on which date he approved the declaration filed by the appellant and intimated it of its entitlement to the notification. In any event we fail to see how it can be said that the appellant had suppressed any material facts or made any wilful mis-statement. The declaration was clear that it was a value under Section 4 which was being furnished. The declaration itself indicated the quantity of goods produced and cleared. The appellant had thus given sufficient data to the department to enable him to determine whether it was entitled to the benefit of the notification. It was easy enough for the department on the basis of data furnished by the appellant to calculate the value of clearances based on tariff value and to take appropriate action thereafter. This has not been done, and each of the four show cause notices is barred by limitation. In the light of this position, we do not consider it necessary to go into the merits of the case.
6. In the result, the appeal is allowed.