Customs, Excise and Gold Tribunal - Calcutta
C.C.E., Jamshedpur vs M/S. Tata Iron & Steel Co. (Tube Div.) on 3 July, 2001
Equivalent citations: 2001(133)ELT235(TRI-KOLKATA)
ORDER
Archana Wadhwa
1. Being aggrieved with the Order passed by the Commissioner (Appeals) allowing the respondent's appeal on the point of limitation, Revenue has filed the present appeals.
2. Briefly stated the facts of the case are that the respondents conducted their own annual stock taking for the year 1986-87 and 1987-88 and submitted the report to their jurisdictional Central Excise authorities on 1.4.86 and 1.4.87. They were issued Show-cause Notice on 12.8.88 raising demand of duty on the shortages found of stock taking. The said demand of duty was confirmed by the original adjudicating authority. However, on appeal filed against the same, Commissioner (Appeals) allowed the appeal by observing as under:
"Without going into merits of the case though I find that on merits also the appellants have a case. I am relying on the two orders issued by the Commissioners on 5.3.88 & 21.6.94 wherein they had dismissed the case of the Department on grounds of limitation and merits. The Commissioners I belief have followed the Govt. of India Orders in Bharat Laundry case. Accordingly, I allow the appeals with consequential relief."
3. Shri V.K. Chaturvedi, learned SDR appearing for the Revenue has strongly contested the above findings of the Commissioner (Appeals). Relying upon the Hon'ble Madras High Court decision in the case of carborundum Universal Limited vs. Union of India - 1992 (58) ELT 403 (Mad), he submits that Section 11A and Rule 223A are dealing with different situation and serving different objects as held by the Hon'ble High Court, limitation under Section 11A is inapplicable to the situation contemplated under Rule 223A. He also drew the attention of the Bench to the Tribunal's decision in the case of Indian Chrome Metals (P) Ltd. vs. C.C.E. Bhubaneswar - 1994 (73) ELT 613 (T) in support of his submission that demand for duty in terms of Rule 223A is independent of levy and collection contemplated under Section 11A. As such he submits that no time-limit could be held under Rule 223A.
4. Dr. Samir Chakraborty, learned Advocate and Shri Abhijit Biswas, learned Advocate appearing for the respondents submit that the Appellate Authority has correctly relied upon the Govt. of India Orders in the case of Bharat Laundry reported in 1991 (54) ELT 316. He also relied upon the Tribunal's decision in the case of Rourkela Steel Plant vs. C.C.E., Bhubaneswar 2000 (40) RLT 838 (CEGAT) wherein while taking note of the earlier decision of the Tribunal it was held that the demand for shortages found during stock verification has to be issued within period of six months from the date of intimation of the shortages. As such he submits that the issue having been decided finally in favour of the respondents Revenue's appeals be rejected.
5. After giving our consideration to the submissions made by both sides we find that there have been divergent views of the Tribunal on the issue as to whether the limitation laid down under Section 11A has to be read into provisions of Rule 223A or not. We would also like to mention here that one decision of the Tribunal in the case of National Fertilizers Ltd. vs. C.C.E., Chandigarh - 2000 (41) RLT 44 (CEGAT). Though the said decision related to demand of duty under the provisions of Rule 196 and held that limitation under Section 11A is not applicable, we consider the said decision to be relevant inasmuch as like Rule 196 no limitation is laid down under Rule 223A. Reliance has also been made in the case of Tribunal's decision in the case of Tamil Nadu Steels Ltd. vs C.C.E., Chandigarh - 2001 (42) RLT 556 holding that the demand raised under Rule 196 is not barred by limitation as laid down under Section 11A. As against the above decisions, the decision in the case of Laxmi Tobacco vs. C.C.E., Raipur - 2000 (39) RLT 834 is to the effect that limitation laid down under Section 11A of the C.E.A., Raipur - 2000 (39) RLT 834 is to the effect that limitation laid down under Section 11A of the C.E.A., 1944 is applicable to Rule 196. The said decision has been arrived at after taking into consideration the earlier decision of the Tribunal as reported in 1955 (8) ELT 734 and the decision of the Hon'ble High Court of Allahabad as reported in 1996 (86) RLT 6.
6. Inasmuch as the two divergent views on the issue involved are available we consider it to be a fit case to refer the matter to the Larger Bench. Accordingly, registry is directed to place the papers before the Hon'ble President for constitution of Larger Bench for the purpose of deciding the disputed legal issue.
(Pronounced)