Custom, Excise & Service Tax Tribunal
Sree Ramakrishna Cattle Feed ... vs Commissioner Of Central Excise on 20 July, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT CHENNAI Application No. E/MISC/40684/2016 & Appeal No.E/3143/1998 [Arising out of Order-in-Original No.9/98 dt.12.8.1998 passed by the Commissioner of Central Excise, Madurai] Sree Ramakrishna Cattle Feed Manufacturers Appellant Vs Commissioner of Central Excise, Madurai Respondent
Appearance:
Shri M.N. Bharathi, Advocate For the Appellant Shri M. Balamurugan, AC (AR) For the Respondent CORAM:
Honble Shri P.K. Choudhary, Judicial Member Honble Shri C.J. Mathew, Technical Member Date of Hearing/Decision : 20.7.2016 FINAL ORDER No.41259/2016 Per P.K. Choudhary Pursuant to the order of the Honble Madurai Bench of High Court of Madras vide order dated 10.02.2014 in C.M.A. (MD) No.1219 of 2005, this Tribunal is taking up this matter for final disposal.
2. The Honble High Court in the above order has held as under:-
10. It has already been pointed out that the CESTAT has not at all decided the present dispute on merits. Since the CESTAT has not decided the present matter on merits, this Court is of the view to set aside the order passed by the CESTAT in Final Order No.1153 of 2005 and to remit the matter to the file of the CESTAT. Since the matter is liable to be remitted to file of the CESTAT, the substantial questions of law raised on the side of the appellant need not be decided and altogether the present Civil Miscellaneous Appeal is liable to be allowed.
11. In fine, this Civil Miscellaneous Appeal is allowed without costs. The order passed in Final Order No.1153 of 2005 in Appeal No.E/3143 of 1998 dated 12.08.1998 by the CESAT is set aside and Appeal No.E/3143/1998 is remitted to its file. Both parties are entitled to adduce additional evidence. The appellate Tribunal is directed to decide the real dispute in question and pass orders on merits.
3. It is seen from the order, the matter had been remanded by the Honble High Court of Madras back to the Tribunal with the direction to both the parties to adduce additional evidence and to decide the matter on merits. Accordingly, the MISC petition filed by appellant for admitting additional grounds for considering the appeal is allowed. MA is disposed.
4. Appellants were represented by Shri M.N.Bharati, Ld. Advocate and Shri M.Balamurugan, A.C, Ld. Authorized Representative represented for Revenue.
5. The appellants had adduced their written submissions contending mainly on the aspect of limitation. The learned counsel for the appellants submitted that they have received with the Show Cause Notice No. 31/1997 dated 10.11.1997 requiring them to show cause as to why an amount of Rs 10,57,220/- for the period 21.05.1991 to 24.07.1996 should not be demanded from them under Rule 196 (2) (iv) of the erstwhile Central Excise Rules, 1944 on the allegation that they have not used the duty-free molasses received under Chapter X procedure in the manufacture of cattle feed as per the declaration. Further, he submitted that it is well settled Rule 196 should be read along with Section 11A of the Central Excise Act which creates a rule of limitation. The normal period of limitation is six months during the period in dispute and the extended period would be available in cases of fraud, collusion, wilful statement or suppression of facts and there is not even a whisper of any such conduct on the part of the appellants and, therefore, the invocation of extended period is not tenable in law. Therefore in the instant case the entire demand is time barred since the show cause notice had been issued much belatedly.
5.1 Ld. Counsel also submits that there is no evidence shown by the department that molasses have not been used for manufacture of cattle feed and cleared elsewhere.
5.1 Ld. Counsel placed reliance on the following decisions:-
1) U.P. State Cement Corporation Ltd. vs. UOI 1996 (86) ELT 6 (All)
2) U.O.I. v. U.P. State Cement Corporation Ltd. 1999 (112) E.L.T. A44 (S.C)
3) CCE Calcutta Vs Kwality Ice Cream Products Ltd.
1998 (101) E.L.T. 166 (Tribunal)
4) Rourkela Steel Plant vs. CCE Bhubaneswar 2008 (227) E.L.T. 522 (Tri. - LB)
5) M/s Sakthi Industries vs. CCEx, Chennai 2009(240) ELT 302 (Tri.Ch) 5.2 Further it is submitted by the appellant submitted that in the impugned order itself, the adjudicating authority had dropped the penalty imposed on them in terms of Rule 173Q/209 of the Central Excise Rules, 1944. When the penalty is not imposed, the invocation of extended period does not arise.
6. The learned A.R contended that the appellants had not purchased rice bran and they have prepared fictitious bills for the purchase of bran; that they had just accounted all the transactions in the statutory records but in reality duty-free molasses have not been utilized in their factory. In this regard, he referred to para-8 of the SCN. Further, he submitted that the appellants had not brought out any evidence to prove that the molasses had been used in the manufacture of cattle feed, therefore the extended period is invocable. He also submits that learned Commissioner in the facts of the present case need not refute each and every point meticulously.
7. We have heard both sides at length. It is the contention of the appellants that since there is no suppression of facts or any wilful misrepresentation, provisions of Section 11A are not applicable and the impugned show cause notice did not even refer to Section 11A nor its contents. On the other hand, the learned AR contended that the appellants have not raised the ground of limitation before the adjudicating authority or in the grounds of appeal before the Tribunal during the first round of litigation.
8. Having heard both sides at length, we find that in all fairness the matter should be remanded back to the adjudicating authority to decide the matter afresh. We find that there are not many documents placed before us although the counsel for the appellant submitted photocopies of the index that was filed by them before this Tribunal in their previous round of litigation. We, accordingly, remand the matter to the adjudicating authority who shall look into all the aspects. It is needless to mention that the learned Commissioner shall pass an order after taking into account all the facts and circumstances of the case. We make it clear that appellant shall be afforded a reasonable opportunity of being heard in the matter and appellant shall produce evidences which, according to them, would support their case. Appeal is allowed by way of remand in the above terms.
(Operative part of the order pronounced in court on 20.07.2016) (C.J. MATHEW) (P.K. CHOUDHARY) TECHNICAL MEMBER JUDICIAL MEMBER gs 1