Customs, Excise and Gold Tribunal - Delhi
C.C.E., Aurangabad vs M/S. Tigrania Metal & Steel Indus on 29 March, 2001
Equivalent citations: 2001(132)ELT103(TRI-DEL)
ORDER
P.S. Bajaj, Member (Judicial)
1. This appeal has been filed by the Revenue against the impugned Order-in-Original dt. 6.12.93 vide which the Collector had dropped the duty demand of Rs. 69,73,171.81 against the respondents.
2. The respondents were served with the Show Cause Notice dt. 29.7.88 vide which duty demand of Rs. 69,73,171.81 on the 'ship breaking scrap' obtained and re-rolled and cleared by them at 'nil' rate of duty after wrongly availing the benefit of Notfn. No.208/83 dt. 1.8.83 during the period 1.8.83 to 31.3.86, was raised. After getting their reply, the Collector confirmed the demand and held that the respondents were not entitled to the benefit of the said notification, as their inputs were not duty paid, vide his order dt. 31.1.89 and imposed penalty on the partner and Manager of the respondents. That order of Collector was however, challenged by the respondents before the Tribunal and the Tribunal affirmed the findings of the Collector with regard to the non-availability of benefit of Notfn. No.208/83 to the respondents, as their inputs were not found to be duty paid, but on the question of limitation as raised by the respondents, the case was sent back for limited purposes, to the Collector for re-examining the issue of limitation.
3. After the remand, the Collector had taken the view that the invoices under which the goods were purchased by the respondents during the period in question, were shown to the Audit Party of the Excise Department who visited the factory of the respondents and as such there was no suppression of facts by them. He had held the duty for the period in question as time-barred, through impugned order under appeal. The Revenue has come up in appeal for challenging the correctness of the findings of the Collector on the question of limitation. The notice for today's hearing was sent to the respondents through the Commissioner, Aurangabad, who through the Dy. Commissioner got it served to the them. But, none has present on behalf of the respondents and no request for adjournment had been also received from them. Therefore, we proceed to decide the appeal after hearing the JDR.
4. The scope of the remand to the Collector was limited as is evident from the Final Order of the Tribunal dt. 19.8.93. The Collector was only required to decide as to whether the demand for the period in question, was time-barred or not, as the respondents raised the plea that it was within the knowledge of the Revenue that they were a vailing the benefit of Notfn. No. 208/83 and there was no suppression of facts by them. But the perusal of the impugned order shows that the Collector has gone beyond the scope of the remand order as in Para 8 of the impugned order, he had recorded the findings that from the invoices from December 85 to 31.3.86 it was clear that the ship breakers had paid the duty under protest. His findings in this regard are beyond the scope of the remand order as such have to be ignored altogether. The Tribunal while remanding the case, recorded specific findings against the respondents that they were not entitled to the benefit of Notfn. No.208/83, as the inputs used by them were not proved to be duty paid. Those findings were never challenged by the respondents and as such, the Collector on receipt of case by remand could not record contrary findings in that regard.
5. Regarding the suppression of material facts by the respondents from the Revenue, the Collector had not recorded specific findings. He had simply opined that the invoice, under which the goods were purchased, were shown by the respondents to Audit Party who visited their factory premises, but when the visit took place and who on behalf of the respondents, showed those invoices, he has failed to disclose. There is also no material on record to show that those invoices were initialled or signed by any member of the Audit Party in token of having gone through or examined the same. From the mere visit to the factory premises, by the Audit Party, it could not be legally inferred that the Revenue had the knowledge about the availment of the benefit of notification in question by the respondents wrongly and illegally. The burden of proving the Department's knowledge was on the respondents, as they availed the benefit of Notfn. No.208/83. But that burden in our view, they had failed to discharge, Even the Collector has failed to record definite findings regarding the knowledge of the Revenue about the availment of the benefit of notification in question by the respondents during the period in question. That being so, in our view, the remand order of the Tribunal stands uncomplied with by the Collector.
6. The ld. JDR, Shri R.C. Sankhla has referred to the observations of the Apex Court in para 10 of the judgment rendered in M/s. Jaishri Engg. Co. (P) Ltd., VS. C.C.E. - 1989 (40) ELT 214 (S.C) that the visit of the departmental officials to the factory of the assessee would not enough to hold that the department was a ware of the production of the goods in question. These observations have also not kept in mind by the Collector while passing the impugned order. Even the Tribunal in M/s. Nizam Sugar Factory VS. C.C.E. Hyderabad - 1999 (114) ELT 429 (T) has taken the view that specific knowledge on the part of the department has to be established by the assessee about the activities carried out by him, in respect of the production/removal of the goods.
7. In view of discussion made above, the impugned order of the Collector is set aside and the matter is sent back to the Collector (adjudicating authority) for fresh decision on the question of limitation, after affording opportunity to both the sides. The appeal of the Revenue accordingly, stands allowed by way of remand.
(Announced and dictated in the Court)