Customs, Excise and Gold Tribunal - Mumbai
Kalyani Lemmerz Limited vs Commissioner Of Central Excise And ... on 5 September, 2001
Equivalent citations: 2002(150)ELT755(TRI-MUMBAI)
JUDGMENT J.H.Joglekar, Member (T)
1. The appellants secured certain capital goods. In terms of the provisions of Rule 57T, necessary declarations had to be filed by them before the receipt of the goods. The rule provided fro condonation of late declaration by the Asstt.Commissioner for a maximum period of three months. The present appellants filed declaration belatedly and sought condonation of the delay. The Asstt.Commissioner vide his letter dated 31.8.95 condoned the delay in certain cases and in other cases, the delay was not condoned. The assessee did not file any appeal against this order. Show cause notice was issued on 22.12.95 seeking reversal/recovery of the credit claimed on the capital goods in the case of which condonation had not been granted. Such demand came to Rs. 11,94,801.71. After hearing the assessee, the Commissioner passed orders directing reversal of the credit. In doing so, he observed that it was for the assessee to have filed an appeal against the denial of condonation in the case of remaining capital goods and at the stage of confirmation of demand, no agitation would be made before him against this order. Against this order, the present appeal is filed.
2. Before us were cited certain judgments of the Tribunal granting condonation of delay beyond the period prescribed in the said rules. But the ld.counsel specifically stated that they were not pressing for this advantage but were limiting themselves to cases which fell within the maximum period allowed for condonation. Shri Bodade for the Revenue submits that since the first order of the Asstt.Commissioner was not challenged, no challenge could be made at this stage.
3. We find that this situation is covered by certain judgments. In the case of Lili Foam Industries (P)Ltd. v. CCE (1990(46)ELT 462) before the Tribunal the departmental representative had claimed that the assessee had paid the duty according to the approved classification list and subsequently they could not challenge the levy of differential demand. The Tribunal observed that even though an assessee might not have contested the correct rate of duty on a commodity cleared by him earlier, whenever the department sought to reopen the assessment and demanded differential duty for whatever reasons, it was open to the assessee to contest the demand for the higher differential duty with an argument that the rate of duty originally applied was wrong. This judgment shows that even if the assessee had not made any move to contest the departmental wording in the first round of agitation it could not be prevented from doing so in the second round. We have examined the part condonation made by the Asstt.Commissioner. He has not given any reason for limiting himself to condone the delay in one demand and denying to condone the delay for the next permissible period of further demands. The grounds were given by the assessee were the same for seeking condonation of all the lots and therefore this discrimination was not well founded.
4. Holding that the period of condonation was made available in the subject rule, we hold that the denial will limit itself to the receipts of capital goods between 20.1.95 to 20.2.95. We uphold the demand of duty confirmed to the extent of Rs. 2,10,807.41 and set aside the remaining demand.
5. The appeal is thus allowed in part. Consequential relief is to be granted to the appellants.
(Dictated in Court)