Custom, Excise & Service Tax Tribunal
M/S.Simplex Engineering & Foundry ... vs Cce, Raipur on 18 August, 2015
THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:18.08.2015
Excise Appeal No.E/2833/2006-EX(DB)
[Arising out of Order-in-Original No.Commissioner/RPR/55/2005 dated 28.11.2005 passed by the Commissioner of Customs & Central Excise, Raipur].
M/s.Simplex Engineering & Foundry Works (Pvt.)Ltd. Appellants
Vs.
CCE, Raipur Respondent
Appearance:
Rep. by Shri L.P. Asthana, Advocate for the appellant. Rep. by Shri Ranjan Khanna, AR for the respondent. For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 1 Whether Press Reporters may be allowed to see 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 of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
Coram: Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 52733/2015 dated:18.08.2015 Per Ashok Jindal:
The appellant is in appeal against the impugned order wherein the duty has been demanded from the appellant for the period December, 1997 to March, 1998 by re-classifying their product and by invoking extended period of limitation.
2. The facts of the case are that the appellant is the manufacture of various machinery parts and like goods. During the period in dispute i.e. December, 1997 to March, 1998, the appellant were filing their classification declaration and have declared that the appellant is manufacturer and supplier of storage and proportioning bins by classifying the same under CTH 8474.90. In remark column, it has been shown as it is part of the sintering machine. The classification declared by the appellant has been accepted by the Department. Later on, it was revealed that the goods manufactured by the appellant does fall under CTH 73.08. Therefore, proceedings were initiated by invoking extended period of limitation and a show cause notice was issued on 3.9.2002 to deny classification and consequently, demanded duty from the appellant. The show cause notice was adjudicated and demands were confirmed. Aggrieved from the said order, the appellant is before us.
3. Ld. Counsel for the appellant fairly conceded that on merits, they have no case but he contested that extended period of limitation is not invokable in the facts of the case as the appellant has filed classification declaration well within advance i.e. on 29.08.97 declaring their products correctly and sough classification under CTH 8474 which was accepted by the Department. Therefore, show cause notice issued in 2002 for the period December, 1997 to March, 1999 is barred by limitation.
4. On the other hand, ld. AR opposed the contention of the ld. Counsel and submits that on merits, it is admitted fact that the appellant have no case. On limitation also, he contended that it is a fact on record that the appellant has shown the goods manufactured by them is part of the sintering machine. In fact, the appellant is manufacturer of bins, which is not part of sintering machine. In fact, the same is part of the sintering plant and the same has not been declared by the appellant in their classification declaration also not produced the copy of the contract entertained between them and the buyer of the goods. Therefore, the extended period of limitation is rightly invoked.
5. Heard the parties. Perused the records.
6. On perusal of the records, we find that the appellant has filed classification declaration under Rule 173 B of the Central Excise Act, 1944 on 29.08.97 which is reproduced below:-
7. On examination of the declaration filed by the appellant, we observe that the appellant has clearly declared that they are manufacturer of various types of bins and classifying the same under CTH 8474.90. In remark columns, they have shown that it is the part of the sintering machine. From the classification declaration, the classification would have to be decided by the concerned officers to classify correctly whether the impugned goods manufactured by the appellant are more appropriately classifiable under CTH 73 or 84. The classification declaration filed by the appellant was accepted during the relevant time. In these circumstances, the allegation of suppression is not sustainable against the appellant. Admittedly, in this case, the show cause notice has been issued by invoking extended period of limitation. Therefore, we hold that as there is no suppression on the part of the appellant, extended period of limitation is not invokable.
8. As the extended period of limitation is not invokable and whole of the demand pertains the extended period of limitation, therefore, demand confirmed along with interest by the impugned order is set aside. Consequently, penalty is also set aside.
9. In view of the above observation, the impugned order is set aside. The appeal is allowed with consequential relief, if any.
[Operative part of the order pronounced in the open Court] ( Ashok Jindal ) Member (Judicial) ( B. Ravichandran) Member (Technical) Ckp.
1