Custom, Excise & Service Tax Tribunal
Business Combine Ltd vs Nagpur on 19 August, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: E/1555/2005
[Arising out of Order-in-Appeal No: SVS/04/Nasik/2005 dated 31st January 2005 passed by the Commissioner of Customs & Central Excise (Appeals), Nashik.]
For approval and signature:
Honble Shri M V Ravindran, Member (Judicial)
Honble Shri C J Mathew, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
No
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Business Combine Ltd
Appellant
versus
Commissioner of Customs & Central Excise
Nagpur
Respondent
Appearance:
Shri Roshil Nichani, Advocate for the appellant Shri Ashuthosh Nath, Asstt. Commissioner (AR) for the respondent CORAM:
Honble Shri M V Ravindran, Member (Judicial) Honble Shri C J Mathew, Member (Technical) Date of hearing: 19/08/2016 Date of decision: 19/12/2016 ORDER NO: ____________________________ Per: C J Mathew:
M/s Business Combine Ltd is in appeal against the upholding the confirmation of duty short-paid under section 11A of Central Excise Act, 1944 and penalty of like amount imposed under section 11Ac of Central Excise Act, 1944 in order-in-appeal no. SVS/04/Nasik/2005 dated 31st January 2005 of Commissioner of Customs & Central Excise (Appeals), Nashik.
2. Duty of ` 5,89, 576/- was demanded from appellant for non-inclusion of value of patterns supplied by customers of castings to be manufactured out of sand moulds shaped according to these patterns during April 1996 to October 2000.
3. Appellant contends that the issue of inclusion of value of moulds supplied free of cost by customer to manufacturer had been plagued with lack of certainty and, they not having evaded payment of duty deliberately, should not have been penalised. It was also submitted that the existence of contrarian decisions on the inclusion of this cost also implied that penal provisions should not have been invoked. The contents of the notice was also challenged for being devoid of any allegation that the goods cleared by appellant was not in accordance with normal price prescribed in section 4 of Central Excise Act, 1944 and appellant insists that, with the clearance value being accepted as the normal price, there is no scope for resort to Central Excise Valuation Rules, 2000. It was also conteded that rule 6 thereof had not been invoked in the notice.
4. Learned Counsel for appellant argued on the same lines and cited a number of decisions in support of his submissions. Learned Authorized Representative asserts that the matter of inclusion of cost of free supplies of moulds and dies has been settled by the Honble Supreme Court by dismissal on 1st April 2015 of the appeal against the decision of the Tribunal in Vimal Moulders (India) Ltd v. Commissioner [2003 (161) ELT 834 (Tri-Del)]. The decision of the Tribunal in Bharat Automotive Pressings (I) Pvt Ltd v. Commissioner of Central Excise, Pune [2010 (262) ELT 720 (Tri-Mumbai)] was referred to discredit the claims of procedural infirmities.
5. One of the critical issues raised by the appellant is that the notice is itself barred by limitation of time. On a perusal, we see that the notice was issued on 6th February 2001 for demand of duty pertaining to April 1996 to October 2000. We also take note of a letter dated 17th March 1998 issued by the Range Officer to appellant calling upon the latter to pay the differential duty on the use of patterns supplied by M/s Alfa Laval and reply of appellant dated 5th May 1998 refuting the liability to duty on that count. Despite this correspondence, no action was taken till another three years had elapsed. With such evident documentation of the knowledge of the tax authorities of the transaction of the appellant and the assertion of the appellant to be not liable to duty thereof, the extended period of limitation permitted in section 11A of Central Excise Act, 1944 cannot be invoked.
6. Demand fails to sustain on this ground and the appeal is allowed by setting aside the impugned order.
(Pronounced in Court on 19/12/2016) (M V Ravindran) Member (Judicial) (C J Mathew) Member (Technical) */as 4 2