2012 (12) TMI 389 - AT - Central Excise

Tribunal upholds dismissal of appeal citing time-barred show cause notice under Central Excise Act

COMMR. OF C. EX., CHANDIGARH Versus PASUPATI SPINNING & WVG. MILLS LTD.

The appeal was dismissed by the Tribunal, upholding the impugned order that deemed the show cause notice as time-barred under Section 11A of the Central ... Service of show cause notice - Benefit of concessional rate of duty claimed under Notification No. 25/97-C.E. dated 7-5-1997 - Demand of Duty with Interest – Held that:- There is nothing in the order-in-original or the record to show as to what proceedings took place pursuant to the show cause notice before the filing of written submissions by the assessee on 22-7-2005. Had the plea of the appellant, that show cause notice was served on the respondent in the year 1998, been correct there ought to have been some proceedings conducted during the period upto 22-7-2005. The order-in-original do not give any clue in this regard. Therefore, in absence of any evidence regarding service of show cause notice on the respondent prior to 22-7-2005, the impugned order of Commissioner (Appeals) holding the show cause notice to be time barred cannot be faulted. Issues Involved:- Appeal against Commissioner (Appeals) order accepting appeal- Denial of concessional rate of duty under Notification No. 25/97-C.E.- Technical ground of limitation set aside by Commissioner (Appeals)- Service of show cause notice within the limitation period- Interpretation of Section 11A of the Central Excise Act, 1944- Lack of evidence regarding the service of show cause notice- Impugned order holding show cause notice as time-barred- Failure to provide reasons for interfering with the Commissioner (Appeals) orderAnalysis:The appeal was filed against the order of the Commissioner (Appeals) accepting the appeal and setting aside the order-in-original confirming a duty demand of Rs. 9,53,414.81 with interest. The denial of the concessional rate of duty claimed under Notification No. 25/97-C.E. was a key issue in this case. The Commissioner (Appeals) had set aside the order-in-original on a technical ground of limitation without delving into the merits of the case, which was a significant point of contention.The appellant argued that the show cause notice was served within the limitation period, refuting the Commissioner (Appeals)'s stance. The respondent, however, contended that Section 11A of the Central Excise Act, 1944 imposes a limitation period of one year for serving the show cause notice, extendable to five years in cases of fraud, collusion, or willful misstatement. The respondent maintained that the department's claim was time-barred due to the delayed service of the notice.The Tribunal scrutinized the evidence regarding the service of the show cause notice and found it lacking. Despite the appellant's assertions, the reply filed by the department was deemed vague and inconclusive. The absence of any proceedings conducted between the alleged service of the notice and the filing of written submissions further weakened the appellant's argument. Consequently, the impugned order holding the show cause notice as time-barred was upheld based on the provisions of Section 11A.Ultimately, the Tribunal concluded that the appellant failed to provide sufficient grounds to challenge the Commissioner (Appeals)'s order. As a result, the appeal was dismissed, emphasizing the importance of adhering to the statutory limitations and evidentiary requirements in such cases.