2018 (7) TMI 1929 - AT - Central Excise

Tribunal dismisses departmental Appeals on merits and limitation issue, upholds assessee's exemption claim

The Tribunal dismissed the departmental Appeals challenging Orders in Appeal on merits, emphasizing the department's awareness of concessional duty ... Valuation - Fly Ash - wrongful availment of concessional rate of duty - benefit of N/N. 57/95 dated 16 March 1995 - extended period of limitation - HELD THAT:- The department was all along fully aware of the clearances of concessional rate of duty on the basis of the certificates from the competent authority, addressed to the Jurisdictional Superintendent, besides the reflection of the excise invoices and the reporting of such clearances in RT-12 returns. It is well settled by the decision of the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI VERSUS M/S. BLUE STAR LTD. [2015 (3) TMI 628 - SUPREME COURT] that when the full facts are known to the department, extended period cannot be invoked. The benefit of the concession for the broken period of 2 June 1998 to 21 September 1998 cannot be denied in view of the decision of the Tribunal in BHARAT TEXTILES & PROOFING INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., CHENNAI [2010 (3) TMI 613 - CESTAT, CHENNAI] as well as M/S. SAM TURBO INDUSTRIES LTD. VERSUS CCE, COIMBATORE [2011 (4) TMI 158 - CESTAT, CHENNAI] on identical facts involving the same concession notification as involved in the appeal herein. Appeal allowed - decided in favor of appellant. Issues:1. Challenge to Orders in Appeal on merits.2. Invocation of extended period of limitation.3. Interpretation of exemption notifications.4. Adjudication of Notices against the assessee.5. Applicability of concession notification.Analysis:1. The department filed Appeals against two 'Order-in-Appeals' while the assessee filed an appeal against another Order-in-Appeal, all involving the same issue. The case revolved around the assessee availing the concessional rate of duty for supplying Spun Pipes to Thermal Power Stations for pollution control purposes under Notification No. 57/95. The department alleged wrongful availment and initiated proceedings against the assessee for the period from July 1996 to December 1999 through four Show-cause Notices. Adjudication Orders and Appeals resulted in a mix of decisions in favor of both parties.2. The department challenged the Orders in Appeal on merits, but the Tribunal noted that the department was aware of the concessional duty clearances based on certificates from competent authorities. The Tribunal cited the decision in CCE Vs. Blue Star, emphasizing that when full facts are known to the department, the extended period cannot be invoked. As the revenue did not appeal the findings on the limitation issue, the department's Appeals were liable to be rejected on the point of limitation alone. Additionally, subsequent Show-cause Notices on the same issue invoking extended period of limitation were deemed impermissible.3. Apart from the limitation aspect, the assessee argued that although exemption notification No. 5/98-CE did not initially cover 'parts of the goods,' an entry for 'parts of the goods specified in this list' was later inserted. The Tribunal referred to previous decisions involving similar concession notifications to support the assessee's claim for the period from June 1998 to September 1998. The Tribunal upheld the benefit of the concession for this period based on legal precedents.4. The Tribunal dismissed the departmental Appeals and allowed the assessee's appeal, providing consequential relief. The decision was based on the department's awareness of the factual circumstances, the limitation issue, and the interpretation of the exemption notifications. The cross objection was also disposed of, concluding the case with the pronouncement of the operative part of the order in the Open Court.