M/S. G.P Tex (S) v. Cce Surat (S).

Per : Mr. M.V. Ravindran; These two appeals are raising the common issue and hence are disposed of by a common order.

2. The relevant facts that arise for consideration are during the year 1995-96, the appellant herein had prepared and issued central excise invoices under Rule 52A of the Central Excise Rules, 1944 in respect of their final product i.e. texturised yarn to their customers. On scrutiny of the statutory records as well as the balance sheet, it was noticed by the departmental authorities that the appellant had collected/charged extra charges from their customers in the name of permissible reductions under Section 4 for transportation, octroi, cash discount and packing charges etc. It was noticed by the lower authorities that transportation charges and octroi charges were permissible while other deductions were not permissible. Coming to a conclusion that appellant had collected an extra amount from their customers on which no central excise duty was paid, show cause notice was issued on 24.03.2000 proposing to demand the differential duty from the appellant. Appellant contested the show cause notice before adjudicating authority on merits as well as on limitation. Adjudicating authority did not agree with the contentions raised by the appellant, confirmed the demands demanded interest and also imposed penalties. Aggrieved by such an order, appellant preferred an appeal before the first appellate authority. The first appellate authority concurred the views of the adjudicating authority and upheld the demands confirmed by the lower authorities.

3. Ld. consultant appearing on behalf of the appellant would submit that the lower authorities have not considered their arguments on limitation in a correct perspective. It is his submission that during the relevant period, the RT-12 returns were filed along with the copies of the invoices to the authorities. It is his submission that during the relevant period, the said RT-12 returns were to be scrutinised and assessed and finally approved. It is his submission that having filed the RT-12 returns to the proper officer, there is no question of suppression of facts as alleged in the show cause notice. It is also his submission that the appellant had shown the admissible deductions in the central excise invoices clearly indicating that they were permissible reduction under Section 4 and hence it was for the departmental authorities to check up the eligibility thereof during the relevant period.

4. Ld. D.R. on the other hand would reiterate the findings of the lower authorities.

5. We have considered the submissions made at length and perused the records.

6. On perusal of the records, we find that the issue involved in this case is regarding whether the demand of the differential duty can be sustained against the appellant for the period 1995-96 on the ground that they are ineligible for availment of deductions under Section 4 in respect of cash discount and packing charges etc.

7. Without going into the merits of the case, we find that the period involved in this case is 1995-96 and during the relevant period, the assessee was required to file monthly RT-12 returns along with all the copies of the invoices which were issued from their factory premises. It is undisputed in this case that the appellant had filed the RT-12 returns regularly with the authorities along with the invoices. It is also undisputed that the invoices which were issued by the appellants indicated deduction from the value as permissible deduction under Section 4. In our considered view, when these invoices were filed along with the RT-12 returns with the authorities, the range authorities should have called for an explanation from the appellant as to what were the deductions that was claimed in the said invoices. The range authorities as well as the divisional authorities, kept quiet and did not ask any explanation from the appellant and issued a show cause notice on 23.04.2000 demanding the differential duty. In our view, the appellant has made out the case in his favour on the ground of limitation as the revenue authorities cannot allege suppression of facts, misstatement with intend to evade payment of duty as the RT-12 returns as well as the invoices indicated the discharge of duty liability after the deduction as claimed by the appellant. In the absence of any contrary evidence, we hold that on limitation, the appellants appeals succeed.

8. In view of the foregoing and the facts and circumstances of this case, we allow the appeals and set aside the impugned orders with consequential relief, if any. (Operative Portion Pronounced in the Court) (B.S.V. Murthy) (M.V. Ravindran) Member (Technical) Member (Judicial) .JK