2005 (12) TMI 192 - AT - Central Excise

Appellant's Concessional Duty Rate Error Corrected, Penalty Nullified

BHARAT HEAVY ELECTRICALS LTD. Versus COMMISSIONER OF C. EX., KANPUR

The appellant availed a concessional duty rate under Notification No. 108/95 for supplying electrical machinery, leading to a demand for differential duty ... Demand - Limitation - Suppression of fact Issues: Availing concessional rate of duty under Notification No. 108/95; Demand for differential duty; Penalty imposition; Applicability of proviso to Section 11A; Error in certificate issuance; Wilful misconduct to evade duty; Jurisdictional Deputy Commissioner's role in determining short levied duty.The judgment involves a case where the appellant availed the concessional rate of duty under Notification No. 108/95 for supplying electrical machinery to a state electricity board. A show cause notice was later issued questioning the eligibility for the exemption, resulting in a demand for differential duty and penalty imposition. The main argument raised by the appellant was that the short payment was not due to fraud or suppression but stemmed from an erroneous certificate issued by the competent authority. The appellant contended that the demand based on the proviso to Section 11A should be set aside as the error was not on their part.The appellant cited a precedent where it was held that duty demand beyond the normal period is time-barred. The Tribunal examined the case records and acknowledged that the certificate was issued by the competent authority in line with the notification, indicating an error on the certificate-issuing authority's part. The Tribunal found no wilful misconduct by the appellant to evade duty, emphasizing that the proviso to Section 11A, which pertains to wilful actions to evade duty payment, was not applicable in this scenario. Consequently, the demand for the extended period was deemed unsustainable.As a result, the appeal was partly allowed by setting aside the demand related to the extended period and nullifying the penalty. The jurisdictional Deputy Commissioner was tasked with calculating the duty amount that was short levied during the normal period, with instructions to adjust this amount from the deposit made by the appellant and return any remaining balance. The judgment was pronounced with these directions on 28-12-2005.