Customs, Excise and Gold Tribunal - Delhi
Corrugated Board India (P) Ltd. vs Collector Of C. Ex. on 6 March, 1987
Equivalent citations: 1989(42)ELT251(TRI-DEL)
ORDER
S.D. Jha, Vice-President (J)
1. The question for decision in this appeal is the legality or correctness of demand of Central Excise duty amounting to Rs, 8903.95 for the period 20-4-1978 to 26-8-1978 demanded by the Superintendent of Central Excise, Range-III, Faridabad by show cause notice dated 15-12-1980 and confirmed by the Assistant Collector of Central Excise, Division-II, Faridabad by his Order-in-Original dated 14-8-1981 and in appeal by the Collector (Appeals) Central Excise, New Delhi by his order dated 23-7-1983.
2. The appellants had availed of benefit of concession under Exemption Notification 46/71, dated 24-4-1971 as amended by 14/78, dated 24-1-1978 in respect of corrugated board manufactured out of Kraft Paper falling under Item 17(2) of CET. The concession under the notification as to rate of duty was inter alia conditional on Kraft Paper having paid duty at the rate of 37.5% ad valorem. It appears that the manufacturer from whom the appellants obtained input paper had availed of incentive granted under Notification 128/77, dated 18-6-1977 and the Kraft Paper sold by them to the appellants had, therefore, not borne Central Excise duty at 37.5% which was the mandatory condition under the notification. While during arguments Shri H.S. Bedi for the appellants argued that the appellants had, in fact, paid duty amount to the manufacturer, this fact alone would not alter the basic fact that even though the manufacturer of Kraft Paper may have collected duty from the appellants, they had availed of the benefit of exemption under Notification 128/77 and the Kraft Paper sold by them therefore had not borne the prescribed 37.5% ad valorem duty. As this was a mandatory requirement of the notification the appellants were rightly held ineligible for benefit of exemption under the notification. In fact, Tribunal has taken a series of decisions with respect to the very same notification on these lines.
3. The other ground urged by Shri Bedi was about limitation which has considerable force. The show cause notice dated 15-12-1980 was for the period 20-4-1978 to 26-8-1978. We have gone through the notice. There is no allegation of mis-statement, collusion, fraud or like so as to justify invoking the longer time limit of 5 years. In the grounds of appeal it has been urged that all the facts were known to the Department and R.T. 12 Returns had been regularly filed by the appellants and the same had been duly approved by the Competent Authority. This aspect of the matter has not been challenged by Shri A.K. Rajhans, the learned JDR, representing the Department. In fact, on the date of hearing Shri Bedi, Chartered Accountant for the appellants had come with the R.T. 12 Returns and these were shown to Shri A.K. Rajhans, JDR for the respondent. Even though the plea of limitation, it appears, was not raised by the appellants before the lower authorities, there is no legal bar to such a plea being allowed to be raised before the Tribunal if the facts are not in dispute. Besides, it is primarily for the Revenue to show how the extended time limit is applicable and that is lacking in the present appeal. In our view on the facts and in the circumstances of the case, the Revenue has failed to show how the extended time limit of five years would be applicable for raising demand against the appellants in this case and not the shorter time limit of six months. Applying six months time limit under Section 11-A of Central Excises and Salt Act, 1944 which was in force on the date of show cause notice the whole demand is barred by limitation. We have already mentioned that in the show cause notice there is no allegation of any mis-statement, collusion, fraud or like on the part of the appellants nor are there any facts from which such an inference could be drawn. We, therefore, on merits find against the appellants but set aside the demand on the ground of limitation. Amount if collected from the appellants shall be refunded to them.