GILARD ELECTRONICS P. LTD. Vs. CCE

JUDGEMENT

(1.) The issue involved in this appeal filed by M/s. Gilard Electronics is whether the extended period of limitation is invokable for demanding duty from them.

(2.) Shri K.K. Anand, learned Advocate, submitted that the appellants manufacture electronic components and they charge design and development charges also from their customers; that the practice adopted by the appellants was to issue as separate Rule 52A invoice for charging design and development charges wherein all the informations such as rate, quantity, amount, PLA No. etc., were also mentioned; that these invoices were also submitted along with the RT 12 returns to the Department; that this practice was being followed since the beginning; that the demand of duty has been confirmed after issuing the show cause notice on 15.2.2001 for the period February 1996 to March 2000; that as the fact of charging design and development charges from their customers had been brought to the knowledge of the Department by way of furnishing the invoices, it cannot be alleged by the Department that there was any mala fide intention on the part of the appellants to evade payment of duty. He emphasised that the mere non -mentioning of development charges in the price declaration will not amount to suppression of facts for invokation of the larger period of limitation. He relied upon the decision in the case of Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay wherein it has been held by the Apex Court that "where facts are known to both the parties the omission by one to do what he might have done and not that he must have done does not render it suppression of fact". Reliance has also been placed on the decision in the case of Ultra Flax (P) Ltd. v. CCE, Faridabad wherein it has been held that extended period of limitation is not invokable if the appellants were under the bona fide belief that duty is not payable.

(3.) Countering the arguments, Shri R.C. Sankhla, learned SDR submitted that the appellants have no where in their price declaration at all declared that they were collecting design and development charges from their customers; that this fact has been suppressed by them from the Department; that the mere filing of invoices in which these charges have been collected does not mean that the fact of collecting the charges was known to the Department as the invoices could not be related to any particular goods. He relied upon the decision in the case of Madras Petro Chem. Ltd. v. CCE, Madras wherein it has been held that where the assessee is working under self removal scheme, it is obligatory on the part of the assessee to make proper and correct declarations as required under the law. He, therefore, contended that as the fact of collecting design and development charges has not been intimated to the Department, the larger period of limitation is invokable.