Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise, Customs & ... vs M/S Oripol Industries Ltd on 9 July, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.167/08
Arising out of Order in Appeal No.01/B-I/08 dated 08.01.08 passed by Commr. of Central Excise (Appeals) & Customs, BBSR I.
For approval and signature:
SHRI S. S. KANG, HON'BLE VICE PRESIDENT
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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Central Excise, Customs & S.T., BBSR I
...APPELLANT(S)
VERSUS
M/s Oripol Industries Ltd.
RESPONDENT (S)
APPEARANCE Shri A. K. Sharma, JDR for the Appellant Revenue Shri Pradipta Kumar Das, General Manager (Commercial) for the Respondents CORAM:
SHRI S. S. KANG, HON'BLE VICE PRESIDENT Date of hearing & decision : 09.07.2009 ORDER NO.........................................................................................
Per S. S. Kang :
Heard both sides. The Revenue filed this appeal against the impugned order on the following grounds :
" The observation of the Commissioner (Appeals) that for the purpose of invoking extended period of demand, the department is required to issue the demand-cum-show cause notice within a period of one year from the date of knowledge of evasion, is factually and legally incorrect inasmuch as Section 11A provides for the time limit of 5 years in cases where short levy/payment, non-levy/payment etc. is by means of fraud, collusion, willful mis-statement or suppression of facts etc.. The finding of the Commissioner (Appeals) on the time bar aspect placing reliance on Hon'ble Supreme Court's order in the case of Nizam Sugar Mills is misplaced and not correct."
2. The only contention of the Revenue is that in case of suppression, the demand can be raised for the period of 5 years in view of Section 11A of the Central Excise Act, 1944.
3. I find that the Commissioner (Appeals) in the impugned order gave a finding of fact that the Revenue was aware of supplementary invoices in the year 1993 whereby a letter has been written by the jurisdictional Superintendent to the present respondent in this regard and the show-cause notice was issued in December, 1995. Hence, proviso to Section 11A of the Act cannot be invoked. The Commissioner (Appeals) also held as under :
" I further find that even otherwise the show-cause notice is barred by time. Department has refuted that supplementary invoices were submitted along with RT-12 return of May,'92. There is however no refutation of their claim that internal audit too had made observation regarding these invoices in March '93. A copy of letter dated 31.7.93 written by jurisdictional Range Superintendent attests to the fact that internal audit had brought to the notice of the department the fact of supplementary invoices. This letter has been forwarded by the appellants vide their letter dated 7.1.08 and is now available on record. It is therefore apparent that department came to know about issue of supplementary invoices in March '93 if not in May '92, but failed to issue the show-cause notice within a period of one year from the date of knowledge of alleged evasion. Notice was finally issued in December '95 only. It is settled law that for purpose of invoking extended period of demand, department is required to issue the show-cause notice cum demand notice within a period of one year calculated from the date of knowledge of evasion. In the present case, notice issued in December '95 is therefore clearly time barred. I place reliance on the decision of the Hon'ble Supreme Court of India in the case of Nizam Sugar Mills as reported in 2006 (197) ELT 465 (SC) in support of above findings."
4. This finding of fact is not controverted in the present appeal. Therefore, I find no infirmity in the impugned order and the appeal is dismissed. (Dictated and pronounced in the open Court) Sd/ ( S. S. KANG ) VICE PRESIDENT mm 10 Ex. Appeal No.167/08