Custom, Excise & Service Tax Tribunal
M/S Sterlite Industries (India) Ltd vs Cce Pune Iii on 24 March, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/2083, 2084 and 2085/06 Mum
Arising out of Order-in-Original No. PIII/BKS/CEX/30-31/2005-06 dated 22.02.2006 passed by the Commissioner of Central Excise, Pune III.
For approval and signature:
Shri. Ashok Jindal, Member (Judicial)
Shri. P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
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 Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s Sterlite Industries (India) Ltd.
:
Appellant
Pravin Agarwal
Dharmedra Jain
Versus
CCE Pune III
Respondent
Appearance Shri Aqeel Sheerazi, Advocate for appellant Shri W.L. Hangsingh, Jt. CDR For Respondent CORAM:
Shri. Ashok Jindal, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical) Date of Hearing : 24.03.11 Date of Decision : 24.03.11 ORDER NO.
Per : Ashok Jindal Brief facts of the case are that the appellants are engaged in the manufacture and supply of ACSR Moose Conductors of various sizes and availing the benefit of exemption under Notification No.108/95-CE dated 28.8.1995. During the period, February 2001 to December 2001, the appellants cleared the above said products to various projects approved by Govt. of India and financed by the World Bank or a notified international organisation without payment of duty by availing the benefit of exemption in terms of Notification No. 108/95 C.E. These clearances were made to M/s. Transmission Corporation of Andhra Pradesh Ltd. (TCAL) which were financed by Japan Bank for International Cooperation (JBIC). It was noted that the JBIC was not a notified international organisation under United Nations (Previleges and Immunities) Act, 1947 and as such TCAL cannot be said to have been financed by a notified international organisation and consequently the benefit of exemption Notification No.108/95-CE was not available to the appellants. Therefore, two show-cause notices were issued, one for the period from February 01 to March 01 on 28th February 2002 and second for the period April 01 to December 01 on 18.08.2005. By the impugned order, demand of duty under Section 11A and equivalent amount of penalty under Section 11AC were confirmed against the appellants on the ground that the appellants are not entitled for the benefit of exemption in Notification No.108/95-CE dated 28.8.1995. Aggrieved by the said order, the appellants are before me.
3. The learned Advocate for the appellants submits that in the appellants own case for the period January 2001 to February 2001 in Appeal No. E/2893/2006 on identical facts, this Tribunal hold that the demands for the normal period is sustainable and if any period is beyond the normal period of limitation is not sustainable. Therefore, extended period of limitation is not invokable against the appellants. In that event, no penalty also be leviable on the appellants. He fairly agreed that the demands confirmed under show-cause notice dated 28.02.2002 are within the normal period of limitation. Therefore, he agreed to pay the duty which they have already paid. He disputed the demands for the period April 2001 to December 01 for which show-cause notice dated 18.8.2005 was issued to them. For these, he submitted that the demands are barred by limitation. Hence the impugned order qua these demands be set aside.
4. Heard and considered.
5. We have gone through the case records and the submissions made by the learned Advocate wherein we find in those cases where the projects were financed by JBIC (which is not an approved organisation to finance the projects) this Tribunal, in the appellants own case, has held that demands for normal period of limitation are sustainable, no suppression can be invokable therefore extended period of limitation is not invokable. Following the same ratio, in this case also demands within the normal period of limitation are sustainable and no penalty be imposable on the appellants as there is no allegation of fraud, collusion, mis-representation, suppression of facts or contravention of provisions of Act and Rules with intent to evade payment of duties.
6. By going through the impugned order, we also note that the Honble High Court of Andhra Pradesh vide order dated 15.3.2002 has stayed the proceedings in such type of cases against the assessees and the said stay order was vacated by the Honble High Court of Andhra Pradesh by Final Order dated 02.03.2005 by dismissing the Writ Petition. Therefore, to calculate the normal period of limitation the period of stay by the Honble High Court of Andhra Pradesh is to be excluded. If this period is excluded, we find that some demands confirmed in show-cause notice dated 18.08.2005 are within the normal period of limitation. Therefore, the demands for the normal period are to be re-quantified. In that event the matter needs examination at the end of the adjudicating authority. Therefore, we pass the following order:-
(a) Demands proposed as per show-cause notice dated 28.02.2002 are confirmed.
(b) Demands proposed in show-cause notice dated 18.08.2005 are to be re-quantified for the normal period of limitation by deducting the period of stay of proceedings by the Honble High Court of Andhra Pradesh.
(c) As there is no suppression of facts on the part of the appellants, no penalties are warranted in this case. However, the interest for delayed payment is payable.
7. Therefore, the appeals of Shri Dharmendra Jain and Shri Pravin Agarwal are allowed and the appeal of the main appellant M/s. Sterlite Industries (I) Ltd. is remanded back to the adjudicating authority only for re-quantification of the demand within the normal period of limitation as discussed above.
8. With these observations, all the appeals are disposed of. (Pronounced in open Court) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) nsk 5