2012 (7) TMI 229 - AT - Central Excise

Revenue's Appeal Dismissed: Importance of Timely Notices & Burden of Proof

Commr. of Central Excise & Customs, BBSR I Versus M/s Paradeep Carbons Ltd.

The Tribunal upheld the decision of the ld. Commissioner (Appeals) in an appeal by the Revenue against setting aside a demand order due to limitations ... Non-inclusion of the loading and forwarding charges in the assessable value - demand and equal amount of penalty – Held that:- The issue relates to the period from March, 01 to Nov. 02, whereas the show cause notice has been issued on 21.12.04, i.e. beyond the time limit prescribed under Section 11A - extended period of limitation cannot be invoked by reasons of willful mis-declaration of assessable value as it is clear that all the relevant information was available with the department appellant was filing monthly statutory returns like RT-12/ER-1 indicating that no duty has been paid by the appellant on the loading and forwarding charges while clearing the goods from the factory and therefore, the allegation of suppression of relevant facts is totally without any basis – in favour of assessee. Issues:Appeal against setting aside order of lower adjudicating authority on grounds of limitation under Section 11A of CEA, 1944.Analysis:The case involved an appeal by the Revenue against the Order in Appeal No.43/B-I/06, where the ld. Commissioner (Appeals) set aside the order of the lower adjudicating authority and allowed the respondent's appeal. The respondents were engaged in the manufacture of Calcined Petroleum Coke (CPC) falling under Chapter 2704 of CETA, 1985. The Department raised a show-cause cum demand notice against the respondents for not including loading and forwarding charges in the assessable value of CPC for a specific period. The lower adjudicating authority confirmed the demand and imposed a penalty under Section 11A of CEA, 1944. The respondents challenged this decision, leading to the appeal. The Revenue contended that the ld. Commissioner (Appeals) erred in holding that there was no suppression of facts or willful misstatement by the appellant. The respondents argued that they had provided all necessary details in the invoices and returns, refuting any suppression of facts. The Revenue claimed that the extended period under Section 11A was justified due to willful misdeclaration of assessable value.The Tribunal considered the submissions and records, noting that the period in question exceeded the normal limitation under Section 11A of CEA, 1944. The ld. Commissioner (Appeals) had dropped the demand based on the aspect of limitation, emphasizing that the show cause notice was issued beyond the prescribed time limit. The ld. Commissioner (Appeals) found that the appellant had not suppressed any facts or evaded duty willfully, as the necessary information was available to the department through monthly returns and other documents. The Tribunal cited precedents to support the decision that without suppression of facts, the invocation of the extended period was not warranted. The ld. Commissioner (Appeals) provided clear and cogent findings, which the Department failed to counter with evidence. Therefore, the Tribunal upheld the order of the ld. Commissioner (Appeals) and dismissed the appeal filed by the Revenue. The demand was deemed time-barred due to limitations, despite the lack of merit in the appeal.In conclusion, the judgment centered on the issue of limitation under Section 11A of CEA, 1944, where the ld. Commissioner (Appeals) set aside the demand based on the absence of suppression of facts or willful evasion by the appellant. The Tribunal upheld this decision, emphasizing the importance of timely issuance of show cause notices and the lack of evidence supporting the Revenue's claims of willful misdeclaration. The case highlighted the significance of adherence to statutory limitations and the burden of proof in establishing non-compliance.