ORDER
V.P. Gulati, Member (T)
1. This appeal is against the order of Collector of Central Excise, Guntur. Under the impugned order the applicant has been called upon to pay a duty of Rs. 2,13,236.40 for having incorrectly availed the exemption notification 85/85 dated 17-3-1985 under provisions of Rule 9(2) read with Section 11A of the Central Excises & Salt Act, 1944.
2. The learned Advocate for the appellant pleaded that he is confining his plea only on the ground of limitation. He has pleaded that the appellant had filed a classification list and claimed exemption under Notification 85/85 and had declared that their clearance would not exceed Rs. 75 lakhs. He pleaded that the appellant’s clearance exceeded this limit and they continued to avail of the benefit of the Notification. He pleaded no doubt the appellant would not have been eligible for lower rate of taxation under the said notification even for clearances made earlier on their crossing the limit of Rs. 75 lakhs, but does not mean that the appellant had suppressed any fact from the authorities. His attention was drawn to the findings of the learned lower authority that the appellant had not followed the requirements specified in trade notice 125/82 dated 12-2-1982 in respect of those who are availing of the small scale exemption notification like Notification 85/85 in as much as they had not shown in the monthly RT 12 returns the progressive total of the clearances monthwise. He however pleaded that this omission could not be tantamount to suppression on their part.
3. The learned Departmental Representative adopted the reasoning of the learned lower authority while pleading that the appellant’s case fell within the mischief of Rule 9(2) read with Section 11A of the Central Excises and Salt Act, 1944.
4. We observe that the appellant has admittedly filed the classification list declaring therein that their clearances were not likely to exceed more than Rs. 75 lakhs. It was, therefore, incumbent on them that they kept a watch regarding the quantum of their clearances for the purpose of notification and to inform the Department at the earliest point of time that they had exceeded the limit. The authorities had required this to be done also by the trade notice No. 125 of 1982 admittedly issued to cover the cases of small scale exemptions for the purpose of keeping a watch on the total value of the clearances. Apart from what the appellants themselves should have done notwithstanding the existence of trade notice i.e. to inform the authorities of having exceeded the limit of Rs. 75 lakhs, they did not follow instructions of the trade notice also. When the Notification provides certain limits for availing the benefit of the Notification and the assessees opt for the benefit under such a notification the burden is on them to come forward to make the Department aware about the total value of the clearances. The appellants have not done so in the present case. In view of this in the facts of this case we hold that the provisions of law as invoked against the appellant have been correctly invokable by the learned lower authority. We therefore hold that the duty has been correctly demanded from the appellant and the penalty rightly levied against them for their failure to come forward to reveal the facts regarding the total value of the clearances. We would like to further observe that in a case where a concession has been granted contingent upon of eventuality in the future any clearance made and any assessment done have to be taken to be contingent upon what will happen in the future. In such a situation the assessments cannot be taken to be final so far as the fulfilment of the conditions of the Notification are concerned. The assessment can be taken as final if the condition of the notification which can be fulfilled of the future clearances are satisfied during the financial year or the period as set out in the Notification. In this view also, therefore, we hold that the demand made against the appellant cannot be taken up hit by limitation. We observe in the case of Premier Automobiles, in whose case the price fixed by the Government was subject matter of litigation and when the assessment had been done finally based on the price fixed, the Hon’ble Bombay High Court has held that on later fixation of a higher price the duty could be recovered as the assessments done earlier could not be taken to be final as both the Departmental authorities and the assessees knew that the price was subject to the outcome of the litigation in the Court. The relevant extract from the Hon’ble High Court’s decision reported in 1987 (30) E.L.T. 71, is reproduced below :
“… The learned single Judge was right in concluding that the assessments were final and complete to the extent that they were made on the footing that the price charged by the Company was merely provisional and the invoices issued by the Company contained the representation that the price was not final but merely provisional. Indeed, the endorsement inserted in the invoice clearly sets out that the final bill would be preferred only after the decision of the Supreme Court. It is not in dispute that, both the appellants and the Department, were aware of the fact that the final price was dependent on the decision of the Supreme Court. It cannot be ignored that the Department could not have completed the assessment by taking into consideration any price in excess of the price fixed under the Price Control Order, and therefore, the mere fact that the assessment orders were final would not shut out the Department from claiming the additional duty.”
Likewise we hold that both the Department and the assessee knew that the benefit of Notification was available subject to the future contingency of whether the appellant exceeded Rs. 75 lakhs or not and therefore any assessment done earlier could not be taken as final. In view of the above we dismiss the appeal.