Custom, Excise & Service Tax Tribunal
M/S. Swastika Conductors vs Commissioner Of Central Excise on 14 July, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. V
Excise Appeal No. 1911 of 2008-SM(BR)
[Arising out of Order-in-Appeal No. 113-114(RKS)-CE/JPR-I/2008 dated 6.6.2008 passed by the Commissioner of Central Excise & Customs (Appeals), Jaipur I]
For approval and signature:
Hon'ble Mr. M. V. Ravindran, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 : No
of the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair : Seen
copy of the Order?
4. Whether Order is to be circulated to the : Yes
Departmental authorities?
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M/s. Swastika Conductors Appellants
Vs.
Commissioner of Central Excise Respondent
Jaipur I
Appearance:
Shri Saurabh Yadav, Advocate for the Appellants
Shri S.K. Bhaskar, JDR for the Respondent
Date of Hearing/Decision : 14 .7.2011
ORAL ORDER NO . ________________________
Per M. V. Ravindran:
This appeal are directed against order in appeal No. 113-114(RKS)-CE/JPR-I/2008 dated 6.6.2008. The issue involved in this case is regarding interest on differential duty paid on issue of supplementary invoices.
2. The learned Counsel submits that demand of interest on differential duty on supplementary invoice raised during the period December 2003 to July, 2006 is hit by limitation as show cause notice was issued on 29.1.2007. He would submits that in the recent judgement of Division Bench of the Tribunal in KEC International Ltd. vs. CCE, Jaipur reported in [2010 (262) ELT 588 (Tri-Del)] is an identical issue has remanded the matter to the adjudicating authority to reconsider the issue of limitation.
3. Learned SDR on the other hand, submits that there is no limitation for demand of interest as has been upheld by the Honble High Court of Bombay in the case of CCE, Aurangabad vs. Padmashri V.V. Patil S.S.K. Ltd. reported in [2007 (215) ELT 23 (Bom)]. He would also rely upon on judgement of the Tribunal in the case of Abhinav Industries vs. CCE, Jaipur I wherein the same view has been upheld.
4. On careful consideration of the submissions made by both sides, I find that issue involved in this case is regarding interest paid on differential duty paid on issue of supplementary invoices beyond the period of limitation by invoking the extended period and also within period of one year from the issuance of show cause notice. Show cause notices do not indicate the reason for doing so. As correctly pointed out by the learned Counsel that in case of KEC International (supra), this Bench has held that point of limitation is not a pure question of law and is always question of law as well as of facts. I find that in identical situation, the Division Bench has remanded back the matter to the adjudicating authority while recording the following:-
5.?In the facts and circumstances of the case, therefore, we find that the contention of the assessee regarding the bar of limitation needs to be addressed to by the adjudicating authority. The demand in question is for an amount of Rs. 15,61,196/-. It is also sought to be contended that the fact that the appellants was required to pay differential duty in pursuance of the issuance of supplementary invoices was revealed to the Department from time to time in the form of statutory returns filed by the appellants. The contention, however, is sought to be controverted on behalf of the respondent while submitted that the returns did not disclose as to whether the payment of differential duty was in relation to the products which were cleared immediately prior to the filing of the returns or it related to the products which were cleared much prior to the filing of the returns. Various other aspects are also sought to be pointed out in relation to such returns. However, it is too pre-mature for this Tribunal to go into all those aspects of the matter. In the facts and circumstances of the case, we find that it would be appropriate to remand the matter to the Commissioner, while permitting the appellants to raise the point of bar of limitation and directing the Commissioner to grant opportunity to the appellants as well as to the Department an opportunity to prove the rival contentions in relation to such issue and thereupon to decide the matter afresh in relation to the said point.
5. Respectfully following same, I find that lower authorities, in this appeal also should consider the question of limitation while adjudicating the matter in de novo proceedings and also for the period within limitation. Since I indent to remit the matter back to lower authority, in my view they should also decide the demand of interest within period of limitation.
6. In view of the foregoing, the impugned order is set aside and the matter is remitted back to the adjudicating authority to consider the same afresh after following the principles of natural justice, only on the question of limitation as on merits the appellants have no case as interest is payable on the supplementary invoices by the appellants.
7. The appeal is allowed by way of remand.
( Pronounced in the open Court on 14.7.2011 )
( M. V. Ravindran )
Member (Judicial)
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