2009 (9) TMI 837 - AT - Central Excise

Tribunal rules in favor of Appellant, finding no suppression of facts. Appeal allowed, setting aside impugned Order.

The Tribunal found that the demand under the second notice for the period from April, 2004 to November, 2004 was not sustainable as there was no ... - Issues involved: Challenge to demand on the ground of limitation u/s 11A of the Central Excise Act.The Appellant filed an Appeal against the demand on the ground of limitation, contending that a show cause notice was issued on 9-1-06 for the period from December, 2004 to March, 2005, and another notice on 17-1-08 for the period from April, 2004 to November, 2004, invoking the extended period of limitation. The Appellant relied on the decision in Nizam Sugar Factory v. CCE to argue that subsequent notices for the same ground are not sustainable (Para 2).The Revenue's contention was that the Appellant had not disclosed all facts and produced records for the relevant period, leading to another notice for the earlier period by invoking the extended period of limitation. They cited the decision in Madras Petro-Chem. Ltd. v. CCE to support their argument that extended limitation applies when information is withheld consciously. They also referred to the case of Saraswati Air Products Ltd. v. CCE to assert the Department's right to issue notices for extended periods (Para 3).The Tribunal found that the show cause notices alleged suppression of facts with intent to evade payment, with one notice for the period from December, 2004 to March, 2005, and another for the period from April, 2004 to November, 2004. The Tribunal held that the demand under the second notice was not sustainable based on the decision in Nizam Sugar Factory case, as there was no suppression of facts by the Appellant (Para 4).Based on the Supreme Court decision, the impugned Order was set aside, and the Appeal was allowed, entitling the Appellant to consequential benefits as per the law (Para 5).