Custom, Excise & Service Tax Tribunal
Commissioner, Central Excise & Service ... vs M/S Polycab Wires Pvt.Ltd on 18 March, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/407/2007-DB; E/CROSS/122/2007 [Arising out of OIA No.RS/2 & 3/Daman/2007, dt.8.3.07, passed by Commissioner (Appeals) of Central Excise, Vapi] Commissioner, Central Excise & Service Tax, Daman Appellant Vs M/s Polycab Wires Pvt.Ltd. Respondent
Represented by:
For Appellant: Shri Jitendra Nair, A.R. For Respondent: None For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. H.K. Thakur, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL) Date of Hearing/Decision:18.03.2015 Order No. A/10245 / 2015, dt.18.03.2015 Per: P.K. Das
1. None appeared on behalf of the Respondents. Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals) whereby the Adjudication order was set aside as the demand of duty is barred by limitation.
2. The learned Authorised Representative for the Revenue submits that during the period December 2002 to March 2003, the Respondents cleared the Electric Cables wrongly claiming exemption under Notification No.8/2002, dt.01.03.2002. He submits that the Central Excise Officers of DGCEI during the verification of the records, noticed that the Respondents wrongly availed exemption notification, which has not been disclosed to the Department. Hence, the extended period of limitation would be invoked. He submits that the Commissioner (Appeals) has erred in law and facts of the case, to drop the demand on limitation without considering the fact that the Respondents had not intimated the wrong availment of exemption notification. He relied upon the decision of the Tribunal in the case of Hi-Tech Needles Pvt. Vs CC Allahabad 2012 (279) ELT 468 (Tri-Del). The Respondents also filed cross objection against the appeal filed by the Revenue.
3. After hearing the learned Authorised Representatives for the Revenue/Appellant and on perusal of the records, we find that the Respondents were engaged in the manufacture of Electric Wires and Cables for industrial purposes classifiable under Chapter 85.44 of the First Schedule to the Central Excise Tariff Act, 1985. A Show Cause Notice dt.01.12.2005 was issued, proposing demand of duty for the period December 2000 to March 2003 alongwith interest and to impose penalty on the ground that the Respondents wrongly availed exemption notification No.6/2000-CE, dt.01.03.2000, 3/2001-CE, dt.01.03.2001, and 6/2002-CE, dt.01.03.2002 on Electric Wires and Cables classifiable under sub-heading No.5402.49 manufactured and cleared by them as parts of non-conventional energy devices/system (other than wind operated). The Adjudicating authority confirmed the demand of duty alongwith interest and also imposed penalty. By the impugned order, the Commissioner (Appeals) set aside the impugned order as the demand is barred by limitation, without going into the merits of the case.
4. For the proper appreciation of the case, the relevant portion of the findings of the Commissioner (Appeals) are reproduced below:-
11. It is further observed that the show cause notice vide F.No.V.85/3-17/SCN/2003-2004/2502 and 2503, dt.08.09.2003 was issued earlier within normal period of one year on the similar issue to the appellant for the part period December 2002 which has also been covered in the SCN under dispute for the period December 2000 to March, 2003 invoking extended period. It is surprising on the part of the department to issue SCN dt.09.12.2005 by invoking larger period (December 2000 to March 2003) on the grounds of suppression and mis-declaration by the appellant when show cause notice dt.08.09.2003 for the same issue for the part period of December 2002, has already been issued within the normal period of one year and adjudicated vide OIO No.2/AC/DMN/DEM/2004, dt.27.02.2004.
12. I further find myself disagreeing with the findings of the lower authority that by merely reflecting the facts in RT 12 regarding clearing of the goods under an exemption notification, it cannot be said that the facts were in the knowledge of the department. It is not possible for the department to infer from the figures of the RT 12 that the notification has been correctly interpreted and availed by the unit. This shows the non-application of mind by the lower authority. Whatever is required as per the provisions of law, the appellant had complied with and disclosed all the facts in the returns and if it was not possible for the department to infer from the figures of the RT12 that the notification has been correctly interpreted and availed by the unit, they should have called for further details/information from the appellant. It is the duty of the Department, not of the appellant only who had already supplied/complied all the details required as per law, to call for further details/records, if required and then could have gone through the same to sort out the queries with regards to interpretation of notification etc by the appellants. Nobody has prevented the Department from doing so.
5. Learned Authorised Representative strongly opposed the order of the Commissioner (Appeals) on the ground that the earlier Show Cause Notice for normal period would not be applicable in the present Show Cause Notice and relied upon the decision of the Tribunal in the case of Hi-Tech Needles Pvt. Ltd (supra). We find from the facts of the case that the Respondents cleared the goods under the cover of Central Excise invoices and declared in the RT 12 return. It is also noted that on an identical issue, for the earlier period, the Assistant Commissioner passed an order dt.27.02.2004. It is seen from the said order that the Respondent paid an amount equal to 8% on the price of the exempted goods as they have availed the CENVAT credit on the common inputs. We find that the Commissioner (Appeals) examined in detail that the Respondents disclosed all the facts in the returns and therefore, there is no reason for holding suppression of facts with intent to evade payment of duty. It is well settled by the decisions of Honble Supreme Court in the case of M/s Northern Plastic Ltd Vs Collector of Customs & Central Excise 1998 (101) ELT 549 (SC) and Honble Bombay High Court in the case of Commissioner of Customs Vs M/s Gaurav Enterprises that the claim of the notification wrongly would not amount to suppression of facts with intent to evade payment of duty.
6. In view of the above discussion, we do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. The cross objection is disposed of.
(Dictated & Pronounced in Court) (H.K. Thakur) (P.K. Das) Member (Technical) Member (Judicial) cbb 2