Custom, Excise & Service Tax Tribunal
M/S Fujikawa Power vs Cce & St, Chandigarh on 29 December, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SCO 147-148, SECTOR 17-C, CHANDIGARH-160017
DIVISION BENCH
COURT NO.1
Appeal No. E/54148/2014
[Arising out of the Order-in-Original No. CHD/CEX/001/COM/028/14 dated 31.03.2014 passed by the CCE (Appeals), Chandigarh-I]
Date of Hearing/Decision: 29.12.2016
For Approval & signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. Devender Singh, Member (Technical)
M/s Fujikawa Power Appellant
Vs.
CCE & ST, Chandigarh Respondent
Appearance:
Sh. Naveen Mullick, Advocate- for the appellant Sh. V.Gupta, AR- for the respondent Coram:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Final Order No: 61839 / 2016 Per Ashok Jindal:
The appellant is in appeal against the impugned order wherein benefit of exemption Notification No. 50/2003-CE dated 10.06.2003 was denied to the appellant.
2. The brief facts of the case are that they started their unit in the state of Himachal Pradesh and filed declaration that the appellant was availing benefit of exemption notification 50/2003-CE dated 10.06.2003. The appellant filed proper declaration before start of production by providing details of inputs used in manufacturing of specified goods, copy of partnership deed, manufacturing process Pollution Control certificate from Director of Industries (HP) and other relevant documents. After taking cognizance of the documents filed by the appellant, the appellant were granted exemption vide letter dated 18.05.2011. The appellant was engaged in the manufacture of Grey Oxide, Red Lead, lead Plates and Batteries availing exemption under Notification No. 50/2003-CE dated 10.06.2003 ibid. The investigation was started and it was found that the appellant is also manufacturing of Red Oxide which is classifiable under chapter heading 2804.60 i.e. Red Lead/ Red Oxide. As goods falling under chapter heading 28.24 are in the negative list of the said notification, therefore, the proceedings were initiated against the appellant by issuance of the show cause notice to demand of duty along with interest and to impose penalty. The show cause notice was adjudicated and the demand of duty was confirmed along with interest and equivalent amount of penalty was imposed on manufacturer of Red Oxide. Against the said order, the appellant is before us.
3. The Ld. Counsel of the appellant submits that the appellant is not contesting the merits of the case but the appellant is contesting that the demand is barred by limitation as for the period March, 2010 to October, 2011, the show cause notice has been issued by invoking extended period of limitation i.e. on 30.11.2012. Further, he submits that while filing declaration for availing exemption Notification No. 50/2003-CE, the appellant has filed the manufacturing process and in the manufacturing process it has been clearly mentioned that during the course of manufacturer of their final product, Red Oxide emerges. In that circumstances, demand is barred by limitation, therefore, the impugned order is to be set aside.
4. On the other hand, the Ld. AR opposed the contention of the ld. Counsel and submits that the appellant has not intimated to the department that intermediate product Red Lead shall come into existence and merely filing the declaration, it cannot be presumed that they have intimated to the department that they are manufacturing the said product, therefore, it is a clear cut case of suppressed the facts. Moreover, the investigation was initiated in September, 2011, therefore, the extended period of limitation is rightly invoked.
5. Heard the parties and considered the submissions.
6. In this case, we find that the short issue involved is that whether the facts and circumstances of the case, the extended period of limitation is invokable or not?
7. The main defence in appeal is that they have filed declaration on 30.03.2010 for availing exemption Notification No. 50/2003 and filed the manufacturing process by way of showing the chart as well as the explaining the same. The description given by the appellant is extracted below:
A. Grid Casting Machine:
Gird Casting m/cs includes lead pots (electrically heated). Grid casting m/c cast a single double vertical position from a vertically mounted mould, one half of which is stationary. The other moveable on leader pin. The machine deliver trimmed grids.
B. Oxide Ball Mill:
Oxide is prepared by tumbling small pieces of pure or entire lead pigs in rotating mill. The final is collected by means of commercial dust collector equipment. Further Red oxide is made in One process.
8. On going through, the manufacturing process explained by the appellant, it is clearly mentioned that the Red Oxide is being made during the process of the manufacturing of their final goods and the chart also shows the same. It is clear that through Batron Process Red Oxide emerges. The said declaration were examined and the Range Superintendent held that the appellant is entitled for exemption under Notification No. 50/2003 ibid. In that circumstances, it cannot be said that the appellant has suppressed the fact of manufacturing of Red Oxide from the department. Therefore, the change of suppression of facts is not sustainable against the appellant. Consequently, the show cause notice is not maintainable which has been issued by invoking extended period of limitation.
9. In that circumstances, we hold that the demands confirmed against the appellant are barred by limitation. Therefore, the impugned order is set aside and the Appeal is allowed with consequential relief, if any.
(Dictated and pronounced in the open court)
Devender Singh Ashok Jindal
Member (Technical) Member (Judicial)
rt
1
E/54148/2014
Fujikawa Power Vs. CCE & ST Chandigarh-I