ORDER
P.C. Jain, Member (T)
1. Ld. Advocate Shri Sridharan in this matter has only pleaded that the demand of duty for Rs. 6,15,287.95 is barred by time inasmuch as the show cause notice was issued on 11-11-1988, whereas the period of demand is 1983-84 and 1984-85 (two financial years). Ld. Advocate has submitted that according to the law laid down by the Apex Court in Bata India Ltd. v. Union of India reported in 1985 (21) E.L.T. 9 the assessable value has to be arrived at after deducting the element of duty even in the case of fully exempted goods. In view of that position of law, as pronounced by the Supreme Court, Id. Advocate submit that the appellant could not be attributed any wilful suppression of facts etc. regarding the value of clearances effected under Notification No. 67/83-C.E. reckoning the exemption limit. Ld. Advocate has fairly admitted that this position of law has, no doubt, been changed in the latter pronouncement of the Apex Court in Asstt Collector of Central Excise v. Bata India Ltd. reported in 1996 (84) E.L.T. 164 but he submits that the later judgment would not be available to the Revenue for the purpose of limitation in the facts of this case, because, as stated above, duty relates to the financial years 1983-85. He fortifies himself by Supreme Court’s judgment in the case of Pushpam Pharmaceuticals reported in 1995 (78) E.L.T. 401 (para 3) for the aforesaid proposition. He therefore, submits that the demand of duty be set aside without entering into the other questions on merits for which also he has argued. Ld. JDR Shri S. Nunthuk submits that such a plea was not taken before the lower authorities and therefore those authorities have no occasion to look into this plea. He has also pointed out that the authorities below have clearly held that the appellant have not fulfilled the conditions of the Notification No. 64/83-C.E. inasmuch as the declaration under the said Notification has not been filed by the appellants. Therefore, the benefit of the Notification would not be available to the appellants. He relies on (i) 1997 (94) E.L.T. 470 – Wipro Ltd. v. Union of India and (ii) 1997 (92) E.L.T. 9 – Mihir Textile Ltd. v. Commissioner of Customs.
2. On limitation, Shri Nunthuk has again pointed out that the production and consequently clearance of the refrigerating appliance has been suppressed by the appellant and therefore, 5 years limitations will be available to the Revenue.
3. In his rejoinder, Id. Advocate has drawn our specific attention to Para F-8 wherein he has relied on the case of Bata India Ltd. v. Union of India 1985 (21) E.L.T. 8, on the importance of the matter with the benefit of Notification 64/83-C.E. to be available after deducting the element of duty from the sale price of the goods. He submits that he cannot now take this plea on merit but nevertheless this plea will still be available to him on limitation particularly in view of Pushpam Pharmaceuticals.
4. We have carefully considered the pleas advanced from both sides. We agree with the Id. Advocate for the appellants that reliance placed by him on Bata India 1985 (21) E.L.T. 9 will be available to the appellant on the question of limitation. The law had been laid down by the Apex Court and therefore, it was the law of the country. Assessable value therefore had to be determined in that manner. The appellant, therefore could be reasonably under a bonafide belief that the value of their clearances in terms of the said exemption Notification would be well within the exemption limit. Consequently, the demand of duty in this case is barred by the time, inasmuch as it has been issued well beyond the normal limitation of 6 months.
5. We, therefore, set aside the demand of duty without entering into the other questions involved in this case. Appeal disposed of in the above manner.