Custom, Excise & Service Tax Tribunal
Spic Pharmaceuticals Division vs Cce Chennai on 13 February, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.E/848/05
[Arising out of Order-in-Appeal No.80/05 (P) dt. 2.9.05 passed by the Commissioner of Central Excise (Appeals), Chennai]
For approval and signature:
Honble Mr. P.G.CHACKO, Member (Judicial)
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 the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
SPIC Pharmaceuticals Division
Appellant/s
Versus
CCE Chennai
Respondent/s
Appearance:
Shri S.Ignatius, Advocate Dr.Nitish Birdi, SDR For the Appellant/s For the Respondent/s CORAM:
Mr. P.G.Chacko, Member (Judicial) Date of hearing : 13.2.2008 Date of decision : 13.2.2008 Final Order No.____________ This appeal is against denial of MODVAT credit of the CVD paid on capital goods imported by the appellants on 31.10.98 and 30.4.99, and also against the penalty imposed on them. The original authority itself had denied the credit (Rs.53,737/-) to the assessee under sub-rule (3) of Rule 57U of the Central Excise Rules, 1944, demanded interest thereon under sub-rule (8) of the said Rule and imposed penalty of Rs.53,737/- in terms of sub-rule (6) of the said Rule. This decision was in adjudication of a show-cause notice dated 22.10.2003. The decision was upheld by the Commissioner (Appeals). Hence the present appeal of the assessee.
2. Notwithstanding certain grounds raised in this appeal, ld.counsel submits today that, on merits, the challenge against denial of the credit is not pressed in view of the Tribunals Larger Bench decision in Essar Steel Ltd. Vs CCE [2004-TIOL-807-CESTAT]. However, it is urged that the demand is barred by limitation. In this connection, it is pointed out that the relevant show-cause notice did not invoke sub-rule (2) of Rule 57U. According to ld.SDR, this provision was also invoked inasmuch as it was clearly alleged in the SCN that the noticee had contravened the provisions of the Central Excise Rules. On a perusal of the SCN, though I have found such an allegation against the assessee, I have not come across any allegation to the effect that the assessee had contravened any provision of law with intent to evade payment of duty. It is not in dispute that any of the ingredients such as fraud, wilful misstatement, collusion or suppression of facts required for invoking the larger period of limitation was not alleged in the SCN. In other words, sub-rule (2) of Rule 57U was not invoked in this case. In the circumstances, the entire demand, which is for a period far remote from the date of the SCN is hopelessly time-barred. There is no question of recovery of interest either, nor the proposal to levy penalty is sustainable.
3. In the result, the impugned order is set aside and this appeal is allowed.
(Dictated and pronounced in open court) (P.G.CHACKO) MEMBER (J) gs 3 2