Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise vs Pooja Ferro Alloys Ltd. on 27 September, 2005
ORDER T. Anjaneyulu, Member (J)
1. The Revenue is in appeal aggrieved by an Order of the Commissioner of Central Excise dated 17-6-2003.
2. The Commissioner (Appeals) in his impugned order in para 6 has observed as follows-
6. However, I find that the appellants have taken the plea that the show cause notice is time barred in as much as they had not hidden any facts from the department and they were regularly filing RT12 returns which were assessed by the department. I find that during the material period, with regard to taking of Modvat credit, the assessee were required to submit the gate passes/invoices, copies of RG23A Pt II and RG23C Pt II along with the RT 12 returns to the department. That being then case, extended period of limitation in respect of irregular Modvat credits, cannot be established once the documents are being submitted to the department along with the RT 12 returns. There is, therefore, sufficient force in this plea of the appellants. The show cause notice has been issued on 10-2-99 in respect of credits taken on 6-6-95. Therefore, the show cause notice, having been issued beyond the normal period of limitation of six months, is clearly time barred.
3. The Department relied on the decision of M/s. Nizam Sugar Factory v. CCE, Hyderabad, (Tri.-LB), wherein it was held that limitation of five years is available even when the Department had knowledge about suppression, fraud etc.,- Period of five years provided under proviso to Section 11A(i) for demanding duty not curtailable, because the Department had knowledge about the fraud, suppression of material facts committed by the assessee.
4. Failure or inaction on the part of the manufacturer or assessee do not tantamount to suppression of fact or fraud as held in the following:
(a) C.C.E. v. H.M.M. Ltd.
(b) Tamil Nadu Housing Board v. CCE, Madras
5. The Commissioner (Appeals) has rightly held that the claim is time barred. I find no other valid ground to interfere with the said finding. Hence, Revenue appeal is dismissed.
(Pronounced in Court)