1. M/s. Associated Laboratories Pvt. Ltd. have filed the appeal against the order-in-original No. 25/94 dated 21.2.1994 passed by the Collector, Central Excise, Bombay-1.
2. Briefly stated the facts are that the appellants manufacture patent or proprietory medicine. They were claiming the benefit of notification No. 161/66 dated 8.10.1966 and notification No. 245/83 dated 13.9.1983 which provided a specified discount on Maximum Retail Price (MRP). A show cause notice dated 22.2.1984 was issued to them demanding central excise duty amounting to Rs. 1,34,121.57 paise for the period from 21.6.1981 to 31.1.1984 on the ground that the benefit of the said notifications was not available to them as the conditions laid down in the notifications were not fulfilled by them. The Collector, in the impugned order, confirmed the demand amounting to Rs. 89,265.83P holding that the appellants had not filed the price-list required under para 19 of the Drug (Price Control) Order (DPCO) in the prescribed form; that the manufacturer could not fulfil the condition specified in the notification; that they were not filing the form and still taking advantage of the notification which amounted to suppression of facts and misrepresentation and consequently the demand for the extended period was justifiable. The Collector, however, allowed them a normal discount which the appellants had offered to their customers.
3. When the matter was called, no one appeared on behalf of the appellants in spite of notice. We, therefore, heard Shri Satnam Singh, learned SDR, and perused the records. The appellants have submitted, in their appeal memorandum that as per the notification No. 5(13)78 Drug II dated 2.4.1979 issued under the DPC Order, 1979, the manufacturers whose clearance was less than Rs. 50 lakhs per annum were not required to file price list under para 19 of the DPC order; that their turnover for the years was less than Rs. 25 lakhs per year. They have, further, submitted that they had furnished a price list in form 5 to Drug Controler, Maharashtra as per para 19 of DPCO 1979 under their letter dated 3.10.1983; that excise notification did not specify that filing of price list to DPCO was mandatory as it merely provided that a deduction of 15% on MRP would be available as per para 19 of DPCO 1979 if the manufacturer opted for the notification; that excise notification did not provide that DPCO notification dated 2.4.1979 was inapplicable. They finally submitted that there was no allegation in the show cause notice about suppression of facts; that they had claimed the benefit of notification No. 161/66 and 245/83 in their classification list and Gate Passes and RT 12 showed Maximum Retail Price minus 15% and RT-12 and were finalised by Revenue. Reliance was placed on the decision in the case of B.D. Steel Castings Ltd. v. CCE, Bombay and CCE v. Indian Card Board Industries Ltd. .
4. Shri Satnam Singh, learned SDR reiterated the findings of the Collector and emphasised that the appellants had suppressed the fact of non-filing of price list from the department and as such the demand of duty for extended period is justified.
5. We have considered the submissions of both the sides. Both notifications No. 161/66 and 245/83 provided exemption from the payment of duty to the extent of discount, specified in the notification, allowed on the retail price of the medicines specified in the price list referred to in paragraph 19 of the Drug (Prices Control) Order. It is apparent from the notifications that the assessable value has to be arrived at after allowing the specified discount on the prices specified in the price list showing the retail price referred to in paragraph 19 of the DPCO. If there is no price list filed by the Manufacturer, the condition stipulated in the notification is not fulfilled and accordingly the benefit of notification cannot be extended to the manufacturer. If a particular manufacturer is exempted from filing the price list on account of any order issued by the Competent Drug Control Authority, the benefit of notification issued under the provisions of Central Excise Law will not (be) available for want of availability of price specified in the price list referred to in paragraph 19 of the Drug (Price Control) Order. However, we agree with the submissions of the Appellants that the duty cannot be demanded for the extended period in absence of any allegation of suppression of facts, fraud, or misdeclaration, etc. in the show cause notice. This was the view of the Appellate Tribunal in the case of CCE v. Triveni Engg. Works Ltd. 1998 (74) ECR 743 (T) in which it was held that as the show cause notice did not contain any averment so as to attract larger period of limitation contained in the proviso to Section 11A of the Central Excise Act, the demand issued for a period beyond 6 months is time barred. We observe that there is no averment about suppression etc. in the show cause notice dated 22.2.1984 issued in the present matter and accordingly any demand beyond the period of 6 months is hit by time limit specified in Section 11A of the Central Excise Act. We, therefore, hold that the Appellants are only liable to pay the demand of duty for the period of 6 months which has to be worked out by the department and communicated to the Appellants. Any demand of duty beyond the period of six months is set aside. The appeal is disposed of in these terms.