Custom, Excise & Service Tax Tribunal
M/S Sail vs Commr. Of Central Excise, Bbsr Ii on 9 October, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.EDM-119/06
Arising out of Order in Original No.CCE/BBSR II/No.41-46/Commissioner/2005 dated 19.12.2005 passed by Commr. of Central Excise & Customs, BBSR II.
For approval and signature:
SHRI S. S. KANG, HON'BLE VICE PRESIDENT
SHRI M. VEERAIYAN, HON'BLE TECHNICAL MEMBER
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? :
M/s SAIL
...APPELLANT(S)
VERSUS
Commr. of Central Excise, BBSR II
RESPONDENT (S)
APPEARANCE Shri S. P. Majumdar, Advocate for the Appellant (s) Shri R. K. Chakraborty, SDR for the Department CORAM:
SHRI S. S. KANG, HON'BLE VICE PRESIDENT SHRI M. VEERAIYAN, HON'BLE TECHNICAL MEMBER Date of hearing & decision : 09. 10. 2009 ORDER NO......................................................................................... Per Shri S. S. Kang :
Heard both sides. The appellants filed this appeal against the impugned order whereby the demand of Rs.14,84,656/- was confirmed for invoking the extended period of limitation and a penalty of Rs.50,000/- was imposed on the appellants under Rule 173Q of the Central Excise Rules, 1944. A demand for interest was also made in the adjudication order. The only contention of the appellants is that six show-cause notices were adjudicated by the impugned order and the demand in respect of show-cause notice issued on 22.2.99 for the period November, 1996 to November, 1998 where the suppression with intent to evade duty was alleged against the appellants is time barred. The contention is that the appellants are engaged in the manufacture of various iron and steel products and were making representations to the Board of the Central Excise and Customs for re-conciliation of the stock in the stockyard and pursuant in the representation made, the Board issued a Circular dated 23rd September, 1999 whereby the special procedure of excess/shortages of iron & steel products at the stockyard/depots of integrated steel plants/consignment agents, was prescribed. In pursuant to this Board's Circular, the excess and shortages of the stockyard were reconciled. The present demand is in pursuant to the procedure specified under above Circular. The contention is that as the Revenue was aware that there was certain shortages and excess in the stockyard, therefore, the allegation of suppression is not sustainable and the demand beyond the normal period of limitation is barred by limitation.
2. The appellants also submitted that the demand of interest is made without mentioning of any Section of the Act in the impugned order. The contention is that during the relevant period, the provision of Section 11AB of the Central Excise Act, provides that the interest is payable in case of suppression/collusion etc. and the provision further amended w.e.f. 11.5.2001 whereby interest was levied in respect of delayed payment of duty. The contention is that as the demand under show-cause notice dated 22.2.99 is barred by limitation, therefore, they are only liable to pay interest w.e.f. 11.5.2001.
3. The contention of the Revenue is that the appellants were getting regular monthly stock/sale statement from the stockyard reflecting excess quantity on consignment-to-consignment basis, but this fact was not disclosed to the jurisdictional Excise Officers. Therefore, the demand for invoking the extended period of limitation is sustainable. In respect of the interest, the contention is that as the duty was paid after the due dates the interest is leviable.
4. In respect of the contention of the appellants that the demand under show-cause notice dated 22.2.99 is time barred, we find that the adjudicating authority held that the appellants were getting regular monthly stockyard statement from the stockyard reflected the excess quantity on the consignment-to-consignment basis and this was not brought to the notice of the jurisdictional Excise Officers. In spite of this finding the appellants had not filed any evidence to show that they are supplying this information to the jurisdictional Excise Officer. Further, we find as per the Special Procedure for dealing with the excess and shortages of iron & steel products at the stockyard/deports of integrated steel plants is prescribed vide Circular dated 23.9.1999. As per the Circular, the assessee has to file by an undertaking for availing benefit of Special Procedure to the effect that on the quantum of 'Net Excess' of each product applicable, the excise duty will be paid by the respective plant suo-motu, through TR-6 challan by calculating the duty payable in the manner specified in the Circular and in case of excess duty paid the refund will not be claimed by the stockyard/depot. As the applicant is availing the benefit of the Circular, therefore, is bound by the terms of the condition of the Circular. Hence, we find no infirmity in the impugned order whereby demand by invoking the extended period of limitation is confirmed and penalty was imposed.
5. In respect of the demand of interest, we find that in the adjudication order, the demand is for recovery of interest at appropriate rate without mentioning any Section of the Central Excise Act. Further we find regarding the demand of interest, the appellants had not made any contention before the adjudicating authority as pleaded before us. Therefore, the matter in respect of demand of interest requires reconsideration by the adjudicating authority. The issue regarding the demand of interest is remanded to the adjudicating authority to decide afresh after affording an opportunity of hearing to the appellants. The Appeal is disposed off in the above terms.
(Dictated and pronounced in the open Court)
Sd/ Sd/
( M. VEERAIYAN ) ( S. S. KANG )
TECHNICAL MEMBER VICE PRESIDENT
mm
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Ex.Appeal No.EDM-119/06