Custom, Excise & Service Tax Tribunal
M/S. Itw India Ltd vs Commissioner Of Central Excise, Pune on 8 January, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/240/05-MUM (Arising out of Order-in- Appeal No. PIII/168/04 dated 20/10/2004 passed by the Commissioner (Appeals), Central Excise Pune-1 ) For approval and signature: Honble Mr. P.K. Jain, Member(Technical) Honble Mr Ramesh Nair, 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 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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M/s. ITW India Ltd.
:
Appellant
VS
Commissioner of Central Excise, Pune-1
:
Respondent
Appearance
Shri. Anand Sakpal, Advocate for the Appellants
Shri. V.K. Agarwal, Addl. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. P.K. Jain Member (Technical)
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 08/01/2014
Date of decision 08/01/2014
ORDER NO.
Per : P.K. Jain Member
Brief facts of the case are that the appellant was manufacturing certain parts on behalf of M/s. Whirlpool India Ltd. For the manufacturing of the said parts appellant was receiving the raw materials M/s. Whirlpool India Ltd and after manufacturing, the parts were being cleared on payment of duty. In addition to receiving raw materials the appellant had also received moulds from M/s. Whirlpool India Ltd. While making the payment of duty for arriving at the assessable value, the appellant has adopted the cost construction method i.e. the cost of raw materials and the job charges and was accordingly paying the duty. On the basis of intelligence, an investigation was taken up by Revenue as it was considered that the supply of moulds free of cost by M/s. Whirlpool India Ltd is additional consideration and amortization cost of the moulds is to be added for arriving the assessable value of the finished product. The period involved is from Aug 1998-Jun 1999. During the investigation the appellant deposited the duty on 1/7/99, 5/7/1999, 6/7/1999. Later on, a show cause notice was issued demanding the said duty, interest and penalty under Section 11AC of Central Excise Rules, 1944. The Show cause notice was issued in Jan 2000. The adjudicating authority has confirmed duty, interest and penalties. On filing the appeal before Commissioner (Appeals), the Commissioner (Appeals) upheld the said order on merits but set aside the penalty as the duty was paid before the issuance of the show cause notice and in view of CESTAT decision in the case of Rashtriya Ispat Nigam Ltd. V/s. Commissioner, Vishakapatnam [2003(161) E.L.T 285(CEGAT.BEL)]. Aggrieved by the said order the appellant is before us.
2. Heard both sides.
3. As far as the issue on merit is concerned, it is observed that the issue has been decided in favour of the Revenue by the Larger Bench decision of this Tribunal in the case of reported in Mutual Industries Ltd. Vs. Collector of Central Excise, Mumbai [2000(117) E.L.T. 578(Tribunal)]. The main contention of the Ld. Advocate for the appellant is that the show cause notice was issued in Jan 2000 and before that there were conflicting decisions of this Tribunal and therefore extended period of limitation can not be invoked and hence demand has to set aside.
4. The main contention of the Ld. A.R. on the other hand is that the deposit period involved is from Aug 1998 Jun 1999 and during this period this Tribunal decision in the case of Flex Inds. Ltd V/s. CCE, Meerut [1997(91)E.L.T 120(Tribunal)] was holding the field and as per the said decision the appellant was required to include the amortization cost of moulds. The appellant has not done the same and therefore there is clear cut suppression of facts and mis-declaration as detailed in the Show Cause Notice, Order-in-Original and Order-in-Appeal. Ld. A.R. contention was that contrary decisions came at a later date and therefore matter was referred to the Larger Bench can not be the reason for setting aside the demand.
5. We have considered the rival submissions.
6. There is no dispute that on merit issue is decided against the appellant by the Larger Bench of this Tribunal. We also note that period involved is from Aug-1998 to Jun 1999. As pointed out by the Ld. A.R. during Aug 1998, the Tribunal decision in the case of Flex Inds. Ltd V/s. CCE, Meerut (supra) was holing the field and appellant was not following the same conflicting decision came later on. It is also noted that in Jun 1999, appellant themselves have deposited the duty on 1/7/99, 5/7/1999, 6/7/1999. It is not disputed that non-inclusion of the cost of amortization was not disclosed to the department and therefore this vital fact was suppressed. The appellant have subscribed in the invoice to fake declaration that price is the sole consideration for sale and no other consideration in any form flowing back to them. Under the circumstances, in our view extended period is correctly invoked and demand is correctly confirmed. Interest will also be chargeable as under Section 11AB. We therefore dismiss the appeal.
(Dictated in court) Ramesh Nair Member (Judicial) P.K. Jain Member (Technical) sk 4