Customs, Excise and Gold Tribunal - Delhi
Prince Khadi Woollen Handloom ... vs C.C.E. on 16 February, 2006
ORDER C.N.B. Nair, Member (T)
1. The short levy demand in these appeals are for the period 1-7-1983 to 12-12-1983 and 7-2-1983 to 30-6-1983. The submission of the learned Counsel for the appellant is that demand is beyond the period of limitation, inasmuch as show cause notice was issued also on 28-5-1997. As against this, the learned DR contends that the show cause notice is a continuation of the proceeding earlier initiated in the light of the judgment dated 5-11-96 passed by the Apex Court [1996 (88) E.L.T. 314].
2. We have perused the record and considered the submissions made by both sides. We may read the judgment of the Hon'ble Supreme Court :-
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 2355-57 OF 1986 105725 Prince Khadi Woollen Handloom --- Appellants Production Coop. Industrial Versus Collector of Central Excise and --- Respondents Anr.
WITH (C.A. Nos. 2868-70/86,4259-61/86,4507-09/86) ORDER In all these matters the original contention of the Revenue was that the appellants were not entitled to the benefit of the Exemption Notification No. 30/81-C.E., dated 1st March, 1981, issued under Rule 8(i) of the Central Excise Rules because the appellants did not satisfy the condition of being registered as handloom cooperative societies or organizations set up or approved by the Government for the purpose of the development of hand-looms. Ultimately, before the Tribunal, this contention of the Revenue was rejected. What the Tribunal considered, and held in favour of the Revenue, was that the appellants had not shown that they were producing the woolen fabrics in "a factory owned by" each of them. It does not appear that at any stage of the proceedings the appellants had been required to show that the factories in which they produced the woolen fabrics were owned them. The order of the Tribunal refusing them the exemption of this ground must, therefore, to set aside. If it is the case of the Revenue that the appellants are not entitled to the benefit of the exemption under the said Notification by reason of the fact that the appellants do not own the factories, in which the woolen fabrics are produced, the Revenue must given the appellants a notice to show cause in this regard and the matter must be processed from that stage. The appeals are allowed. The judgment and order under appeal is set aside. The tax, if paid or deposited pursuant to the order of the Tribunal or of the authorities below, shall be refunded to the appellants. There shall be no order as to costs.
(S.P. Bharucha) (K.S. Paripoornan) New Delhi.
November 5,1996.
3. Clearly, the above judgment is not an order of remand. Nor is there any direction to continue the proceeding. Therefore subsequent proceeding has to be treated as a fresh proceeding and has to satisfy the terms of Section 11A in relation to limitation. As already noted above, the period of demand is 1983, and impugned show cause notice was issued only in 1997. Section 11A of Central Excise Act permits the recovery of non levied or short levied duty, only upon service of notice within a maximum period of five years. The present proceeding, having been initiated way beyond the permissible period has to fail on the ground of limitation. Accordingly, the appeal is allowed on the ground of limitation.
(Pronounced in the Court)