Customs, Excise and Gold Tribunal - Delhi
M/S. Vikas Laminator Ltd. vs Cce, Meerut on 27 April, 2001
Equivalent citations: 2001(76)ECC94
ORDER
Mr. C.N.B. Nair
1. Today the matter has been posted for hearing the Stay application of the appellants. The learned Counsel representing the appellants submits that the impugned order has been passed pursuant to Order of remand of this Tribunal vide Final Order No. 182/2000-A dated 15.3.2000. He pointed out that the issue remanded for consideration in the Final Order was whether the original assessment had been done in terms of approved price list, in other words whether the assessments were provisional or not. The learned Counsel submitted that in case the assessments were final in terms of approved price lists, there was no justification for raising the demand invoking the Provisions contained in Section 11 A of the Central Excise Act allowing raising of demand during the extended period of 5 years. In this contest he referred to para 2 of our remand order. The learned Counsel submitted that in the adjudication proceedings the Commissioner has verified the records and has stated in page 9 of his Order in Original that:-
"they started filing price lists in proforma Part II w.e.f. December, 92. Those price lists were approved finally and the RT 12 during the period in question were also assessed finally."
The Counsel, therefore, prayed that the demands should be held as time bar red and the appeal itself ordered in favour of the assessee.
2. We have heard the learned DR also. Our remand order was passed in the light of the appellants submission that demand in question was time barred. On this issue, we had noted that the appellant had been filing price-lists alongwith contracts for approval before the authorities. Those contracts had specifically indicated that separate collection has been made towards cost of cylinders. In view of that finding we directed as under:-
"In view of the above discussions, in this case, correct facts as to the assessment of the goods (provisional or final) during the period covered by the show cause notice are required to be ascertained and the case dealt with depending upon the facts emerging during the proceedings. If the price lists had not been approved, the Revenue is entitled to proceed with the matter under Rules relating to provisional assessment. On the contrary, in the price lists had been approved for even part of the period, the relevant provisions relating to recovery of duty under Section 11A would become applicable. We, therefore, set aside the impugned order-in-appeal and remand matter for a fresh decision in accordance with law after ascertaining the correct facts of the case."
The impugned order makes it clear that the assessments had been made finally in terms of approved price lists. As the appellants had filed pricelists alongwith contracts, the Revenue cannot raise the allegation of suppression of facts and take recourse to extended period of demand as provided in Section 11A. The show cause notice itself is time barred. Appeal is accordingly allowed, holding the proceedings as without jurisdiction.
(Pronounced & dictated in the open court)