Custom, Excise & Service Tax Tribunal
M/S.Forgings (India) Iron & Steel Ltd vs Cce-Kol-Ii on 20 March, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition No.SP-80153/13
&
Appeal No.Ex.Ap.72105/13
(Arising out of Order-in-Appeal No.124/KOL-II/2012 dated 15.11.2012 passed by the Commissioner of Central Excise(Appeals), Kolkata-III.)
FOR APPROVAL AND SIGNATURE
HONBLE DR.I.P. LAL, 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.Forgings (India) Iron & Steel Ltd.
Applicant (s)/Appellant (s)
Vs.
CCE-KOL-II
Respondent (s)
Appearance:
Shri Shyamal Kr. Mukherjee, Accountant for the Appellant (s) Shri A.K.Biswas, Supdt.(A.R.) for the Revenue (s) CORAM:
Honble Dr. I.P.Lal, Member(Technical) Date of Hearing/Decision :- 20.03.2013 Date of Pronouncement :- 20.03.2013 ORDER NO.S-60/A-76/KOL/13 Per Dr. I.P. Lal.
1. Heard both sides.
2. This application has been filed for waiver of pre-deposit of penalty of Rs.25,376/- imposed under the provisions of section 11AC of the Central Excise Act and the interest amount.
3. Facts of the case are that during the audit it was found that the appellant has removed 11 number of Armature Shafts valued at Rs.1,83,975/- as per drawing and design of their buyer M/s.Chittoranjan Locomotive Works vide Invoice No.RS/001/04/2004-05 dated 05.04.2004. Since they had removed the impugned goods as trading item and the said goods were tailor made goods they were requested to explain whether their supplier which is their sister concern is having the equipment and machinery for the production of subject goods. Since it could not be explained satisfactorily, duty was demanded.
4. Ld.Representative of the Appellant stated that since they have paid the entire amount of duty, predeposit should be waived and the appeal can be disposed of finally.
5. Ld.A.R. consented that the matter can be taken up for final disposal. Accordingly with the consent of both sides I stay the pre-deposit of the amount adjudged and proceed to dispose of the appeal finally.
6. The appellant states that the duty is demanded in respect of invoice issued on 05.04.2004 and the show cause notice is issued on 24.04.2009 and therefore the duty is time barred. He further submitted that these goods were purchased by them from their sister units. In spite of this they had paid the duty immediately on 23.08.2007 on pointing out by the audit.
7. The Ld.A.R. brought attention to the statements of Shri Shyamal Kr. Mukherjee working as accountant wherein he had admitted that no duty was paid against the goods cleared under the invoice dated 05.04.2004.
8. I find that the Armature Shafts supplied under invoice dated 05.04.2004 are tailor made and they were as per drawing and specification of M/s.Chittaranjan Locomotive Works. The applicants have explained that the said goods were purchased by them from M/s.Primax Pipes i.e. their sister concern. It is evident in this case that their sister unit is not having any manufacturing facility. Besides Shri Shyamal Kr. Mukherjee has categorically admitted in his statement that the excise duty was not paid at the time of clearance of the said goods thus the clearance under trading invoicing were made with intention to evade duty. Honble Supreme Court in case of Commissioner of C.Ex., Visakhapatnam Vs. Mehta & Co. reported in 2011 (264) ELT 481 (S.C.) have held that in cases of intention to evade duty relevant date for computation of extended period for show cause is the date of knowledge. Accordingly I hold that show cause notice in this case is not time barred.
9. I therefore uphold Commissioner(Appeals)s order and dismiss the Appeal filed by the Appellant. Stay Petition also disposed of.
(Pronounced and dictated in the open court.) SD/ (I.P.LAL) MEMBER(TECHNICAL) sm 3 Appeal No.Ex.Ap.72105/13