Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise & Customs, Bbsr ... vs M/S Paradeep Carbons Ltd on 16 April, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.418/06
Arising out of the Order in Appeal No.43/B-I/06 dated 20.4.06 passed by Commissioner (Appeals) of Central Excise & Customs, Bhubaneswar.
For approval and signature:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Central Excise & Customs, BBSR I
APPELLANT(S)
VERSUS
M/s Paradeep Carbons Ltd.
RESPONDENT (S)
APPEARANCE Shri D. K. Nath, Dy. Commr. (A.R.) for the Department Shri M. S. Nagaraja, Adv. for the Respondent (s) CORAM:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & DECISION : 16. 04. 2012 ORDER NO.. Per Shri S. K. Gaule :
Heard both sides. Revenue filed this appeal against the Order in Appeal No.43/B-I/06 dated 20.4.06, whereby the ld. Commissioner (Appeals) set aside the order of the lower adjudicating authority and allowed respondents appeal.
2. Briefly stated the facts of the case are that the respondents are engaged in the manufacture of Calcined Petroleum Coke (CPC) falling under Chapter 2704 of CETA, 1985. The Department raised a show-cause cum demand notice dated 21.12.2004 against the respondents for Rs.1,89,248/- on the ground that they have not included the loading and forwarding charges in the assessable value of CPC for the period March, 2001 to November, 2002. The lower adjudicating authority confirmed the demand and equal amount of penalty was also imposed under Section 11A of CEA, 1944. The respondents challenged the same. The ld. Commissioner (Appeals) set aside the order of the lower adjudicating authority on the ground of limitation of time as prescribed under Section 11A of CEA, 1944. Being aggrieved by the same, the Revenue is in appeal.
3. The contention of the Revenue is that the ld. Commissioner (Appeals) had erred in holding that the appellant had not suppressed any facts or adopted any colourful device to evade payment of duty, since the RT-12 return filed by the appellant does not contain any column to show the ingredients of computation of assessable value based on which duty has been paid. The contention is that the Audit has detected this case and had it gone un-noticed the respondent would have evaded the duty.
4. The contention of the respondents is that in the invoices, all the particulars of loading and forwarding charges which have been showing in the invoices are given and the RT-12 returns are filed, which is also evident from the show-cause notice. The contention is that the Department could not bring out any evidence for suppression of facts or willful mis-statement against them. The contention is that the order of the ld. Commissioner (Appeals) is clear and cogent. Therefore, the order of the ld. Commissioner (Appeals) is sustainable.
5. We have considered the submissions and perused the records. Undisputedly, the period involved in this case is beyond the normal period of limitation as prescribed under Section 11A of CEA, 1944. The ld. Commissioner (Appeals) has dropped the demand on aspect of limitation as is clear from Para 6.2 of the impugned order which reads as under :
6.2 As regards the aspect of time bar, I find that the issue relates to the period from March,01 to Nov.02, whereas the show cause notice has been issued on 21.12.04, i.e. beyond the time limitk prescribed under Section 11A of the Act. However, the lower authority has invoked the provisions of extended period under sub-section (1) of Section 11A of the Act as the duty on the loading and forwarding charges has not been paid by them by reasons of willful mis-declaration of assessable value in their monthly returns and invoices during the period of short levy of duty by reasons of willful suppression of facts with intent to evade payment of duty. On perusal of the show cause notice, I find the detection was made while verifying the monthly returns like RT-12/ER-1, submitted by them. It is not denied that the appellant was filing monthly statutory returns like RT-12/ER-1 indicating that no duty has been paid by the appellant on the loading and forwarding charges while clearing the goods from the factory. They were also filing other assessment documents and it is clear that all the relevant information was available with the department and without the knowledge of the department and therefore, the allegation of suppression of relevant facts is totally without any basis in terms of the decision of Honble Tribunal in the case of G. K. N. Drive Shafts (I) Ltd. reported in 2003 (154) ELT 177. Since the appellant had not suppressed any facts or adopted any colourful device to evade payment of duty as is evident from the face of the show cause notice where it has been admitted that the detection was made while verifying the monthly returns filed by the appellant, the invocation of extended period is not available to the Revenue in terms of the decision of Honble Tribunal in the case of Bharat Heavy Electrical Ltd. reported in 2003 (154) ELT 121 and in the case of Bombay Processors reported in 2004 (163) ELT 111. Further, I find Board vide Circular No.124/35/95-CX dated 10.5.95 has stipulated that the obligation is cast on the department to scrutinize the documents furnished by the assessee and accordingly the Revenue was at full liberty to verify the necessary records placed before them and to raise allegation within the time frame under Section 11A of the Act. As there is no suppression the invocation of the extended period by the lower authority cannot be upheld as per the ratio of the decision of the Honble Tribunal in the case of Pushpam Forging reported in 2006 (193) ELT 334. Above all, the demand relates to the period from March01 to Nov.02 and the show cause notice should have been issued within one year of the date of filing of the returns and hence the departments attempt to invoke the proviso to sub-section (1) of Section 11A to avail the benefit of extended period is not warranted. The principles laid down by the Honble Apex Court in Tamilnadu Housing Boards case reported in 1994 (74) ELT-9, in the case of Chemphar Drugs and Liniments reported in 1989 (40) ELT 276, in the case of Cosmic Dye Chemical reported in 1995 (75) ELT 721 and in the case of National Radio & Electronics Company reported in 2000 (115) ELT 35 would clearly lead to the conclusion that the demands in this case are barred by limitation. As such in spite of the fact that on merits, the appeal is not maintainable, the demand gets time barred on the aspect of limitation. Thus the ld. Commissioner (Appeals) has given clear and cogent findings. The Department could not produce any evidence contrary to the above. In these circumstances, we do not find any reason to interfere with the order of the ld.Commissioner (Appeals). The order is upheld and the appeal filed by the Revenue is dismissed.
(Dictated and pronounced in the open Court)
Sd/- Sd/-
(DR. D.M. MISRA) (S.K. GAULE)
JUDICIAL MEMBER TECHNICAL MEMBER
mm
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Ex. Appeal No.418/06