Customs, Excise and Gold Tribunal - Delhi
Cce vs Trimurti Metal Industries, Vipin Metal ... on 16 October, 2003
ORDER
V.K. Agrawal
1. These are 5 appeals, filed by Revenue, against common Order-in-Appeals No. 156-160/2003 dated 29.4.2003 by which the Commissioner (Appeals) has set aside the Adjudication Order demanding duty and imposing Penalty on Appellants No. 1 to 4 and has set aside the Penalty imposed on Appellant No. 5.
2. Shri O.P. Arora, learned SDR, submitted that all the Appellants purchased stainless steel flats on payment of duty which are cut into small pieces and then hot rolled in the form of patta/patties; that the circles were used captively for the manufacture of utensils as well as were being sold in the open market; that in respect of circles used captively for the manufacture of utensils as well as were being sold in the open market; that in respect of circles used captively for the manufacture of utensils the cold rolled patta/patties are chargeable to duty @ 15% ad valorem. He, further, submitted that that the demands are not time barred as held by the Commissioner (Appeals) in respect of first 4 Respondents and the extended period of limitation is available to the department for demanding duty as they had suppressed that fact of production of utensils in their classification list/declaration field by them; that under the Heading "Particulars of other goods manufactured, produced or intended to be removed by the Assessee" they had mentioned 'Nil'; that as such the fact of manufacture of exempted goods namely utensils has been suppressed by them from the department; that the department was accordingly only aware that they were manufacturing stainless steel pattas/patties and was clearing some of it by paying duty @ 15% and some of it was being used captively for the manufacture or circles which were also cleared on payment of duty @ 15%. he also mentioned that the Respondents deliberately paid duty on the circles which were otherwise exempted from payment of duty when captively used ;that thus there was deliberate action on their part to evade payment of duty at pattas/patties stage by paying duty at circle stage; that it has been held by the Larger Bench of the Tribunal in the case of Nizam Sugar Factory vs. CCE, Hyderabad -1999 (14) ELT 459 (Tribunal) that the date of knowledge by the department is not relevant for invoking the proviso to Section 11A(1) of the Central Excise Act. Finally, he submitted that Penalty is imposable on M/s. Jagatsons Industries, Respondents No. 5 against whom demand has been confirmed by the Commissioner (Appeals).
3. Shri J.S. Agarwal, learned Advocate, submitted that the issue involved in the present appeal stands decided by the Appellate Tribunal in the case of Jagatsons Industries Vs. CCE, New Delhi-III-2002(141) ELT 803 (Tribunal); that one of the Respondents M/s. Jagatsons Industries was the party to the matter already decided by the Tribunal.
4. We have considered the submissions of both the sides. We find that the issue whether extended period of limitation for demanding duty is invokable has been considered by the Appellate Tribunal in the case of Jagatsons Industries (supra) wherein the Tribunal observed as under :-
"The Appellants are availing of Modvat Credit of duty paid on flats and clear part of the circles manufactured by them on payment of duty and part of the circles are captively consumed in the manufacture of S.S. Utensils which are exempted from payment of duty. The Appellants are making payment of duty even in respect of circles which are captively consumed though duty is nil. Perhaps the duty is paid by them as they avail of Modvat credit of duty paid on S.S. flats. We find substance in the submissions of the Appellants that if any duty is held to be payable by them on cold-rolled products, the duty already paid by them has to be adjusted towards such duty payable. In view of the various decisions of Supreme Court and the Appellate Tribunal, it cannot be claimed that there was suppression of any fact by the Appellants and larger period of limitation is not invokable. In the facts and circumstances of the case we are of the view that no penalty is imposable on the Appellants and set aside the same."
Following the ratio of the said decision we hold that larger period of limitation is not invokable and the Commissioner (Appeals) has set aside the demand following the decision in Jagatsons Industries case. The mere fact that reference application has been filed is not sufficient for not following the said decision. We, therefore, reject all the appeals filed by the Department.
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