Custom, Excise & Service Tax Tribunal
M/S.Sail vs Cce, Bbsr-Ii on 13 January, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.EDM-447/05
(Arising out of Order-in-Original No.CCE/BBSR-II/NO.20-COMMISSIONER/2005 dated 20.07.05 passed by the Commissioner of Central Excise & Customs, Bhubaneswar-II.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.S. KANG, VICE PRESIDENT
HONBLE SHRI S.K. GAULE, 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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s.SAIL
Applicant (s)/Appellant (s)
Vs.
CCE, BBSR-II
Respondent (s)
Appearance:
Shri Ravi Raghavan, Advocate for the Appellant (s) Shri R.K. Chakraborty, Authorised Representative (SDR) for the Revenue CORAM:
Honble Shri S.S.Kang, Vice President Honble Shri S.K. Gaule, Member(Technical) Date of Hearing:- 13.01.2010 Date of Pronouncement :- 13.01.2010 ORDER NO.
Per Shri S.S.Kang.
1. Heard both sides.
2. Appellant filed this Appeal against the impugned order whereby the demand of Rs.1,06,31,925/-(Rupees One Crore Six Lakhs Thirty One Thousand Nine Hundred and Twenty Five only) was confirmed by invoking the proviso to Section 11A of Central Excise Act on the ground of suppression of fact with intent to evade payment of duty. The case of the Revenue is that the Appellant claimed the credit in respect of the capital goods which are used in the captive power plant. On 07.03.2001 the Appellant entered into an agreement with National Thermal Power Corporation and floated a joint venture company namely NTPC SAIL Power Supply Company Limited and transferred the captive power plant to the joint venture company. The case of the Revenue is in respect of capital goods which were transferred to the joint venture company. The contention of Appellant is that the demand is for the period March, 2001 to March, 2003 and Show Cause Notice was issued on 14.01.2005 invoking proviso to Section 11A on the ground of suppression of fact with intent to evade payment of duty. One Show Cause Notice was issued on 17.09.2002 demanding duty in respect of capital goods on the basis of joint venture agreement dated 7.3.01 and the matter went up to Tribunal and Tribunal set aside the demand. The decision reported as Steel Authority of India Ltd. Vs. CCE 2007 (219) ELT 960. It is also submitted that the Revenue approached the Committee on Disputes to pursue the matter before Honble High Court and the request was declined. Another Show Cause Notice was issued in the year 2003 on the basis of the same joint venture agreement demanding duty on the furnace oil and these proceedings were set aside by the Tribunal vide final Order No.A-1294/KOL/2007 dated 11.07.2007. Subsequently another Show Cause Notice was issued in October, 2003 on the basis of the same agreement demanding duty on the unutilized stores and the same is pending. The contention is that as in the year 2002 the first Show Cause Notice was issued based on the joint venture agreement dated 07.03.2001 therefore allegation of suppression with intent to evade payment of duty on the basis of same agreement in the present Show Cause Notice dated 14.01.2005 is not sustainable.
3. The contention of Revenue is that Appellant had not disclosed the true facts regarding joint venture company and after long correspondences when the facts came to the notice of the Revenue the present Show Cause Notice was rightly issued by invoking section 11A of the Act.
4. We find that a joint venture agreement with N.T.P.C. was entered on 07.01.2001 and the captive power plant was transferred to the joint venture company. On the basis of the agreement first Show Cause Notice was issued on 17.09.2002 and subsequently Show Cause Notices were issued in the year 2003 and October, 2003 which are demanding duty on furnace oil, unutilized stores etc.Therefore the allegation of suppression with intent to evade payment of duty in the present Show Cause Notice is not sustainable as the of joint venture agreement was in the notice of the Revenue in the year 2002 when first Show Cause Notice was issued. In view of the above discussion the demand of duty is set aside on the ground of limitation without going into the merits and Appeal is allowed. Appellant is entitled for consequential relief, if any, in accordance with law.
(Pronounced and dictated in the open court.) Sd/ sd/ (S.K. GAULE) (S.S.KANG) MEMBER(TECHNICAL) VICE PRESIDENT sm 4 Appeal No.EDM-447/05