1997 (6) TMI 275 - AT - Central Excise

Duty demand time-barred under Section 11A; appeal allowed citing disclosure and Supreme Court precedents

FESTO CONTROLS LTD. Versus COLLECTOR OF C. EX., BANGALORE

The Tribunal held that the demand for duty was time-barred as the extended period of limitation under Section 11A was deemed inapplicable. The majority ... Demand - Limitation - SSI Exemption Issues Involved:1. Applicability of the extended period of limitation under Section 11A of the Central Excise Act.2. Eligibility for the benefit of Notification 175/86 concerning the use of a foreign collaborator's brand name.3. Whether the demand for duty was time-barred.Issue-wise Detailed Analysis:1. Applicability of the Extended Period of Limitation:The core issue was whether the extended period of limitation under Section 11A was applicable. The appellants argued that they had informed the Department about their collaboration with Festo KG, Germany, and thus there was no deliberate suppression or misstatement with intent to evade duty. The Tribunal considered the appellants' letter dated 23-6-88, which disclosed the collaboration, albeit in the context of job-work permission. The Tribunal observed that sufficient relevant disclosure had been made to the Department, and there was no intentional evasion of duty. The Tribunal relied on the Supreme Court rulings in Tamil Nadu Housing Board v. CCE and Pushpam Pharmaceuticals Ltd. v. CCE, which held that mere failure to pay duty does not suffice; there must be deliberate avoidance of duty. Consequently, the Tribunal concluded that the extended period of limitation was not applicable.2. Eligibility for Notification 175/86:The appellants did not contest the issue on merits, focusing solely on the limitation aspect. The Tribunal noted that the eligibility for Notification 175/86 was previously decided against the appellants, holding that using a foreign collaborator's brand name disqualified them from the exemption. The Tribunal referenced the Government's clarification in 1989 and subsequent Tribunal decisions, which crystallized the interpretation that the exemption under Notification 175/86 was not available to small-scale manufacturers using a foreign brand name. The appellants' bona fide belief in their eligibility for the exemption was considered, but the focus remained on the limitation issue.3. Time-Barred Demand for Duty:The Tribunal examined whether the demand for duty was time-barred. The appellants argued that the demand was beyond the normal period of limitation. The Tribunal considered the appellants' letter dated 23-6-88, which informed the Department about the collaboration. The Tribunal found that this disclosure, although in a different context, indicated that the Department was aware of the collaboration. The Tribunal also noted that the interpretation of Notification 175/86 was clarified only after the relevant period, supporting the appellants' bona fide belief. The Tribunal concluded that the extended period of limitation was not justified, and the demand was time-barred.Separate Judgments:Majority Opinion:The majority, comprising Member (J) and Member (Judicial), held that the demand was time-barred. They emphasized that the appellants had made sufficient disclosure to the Department and acted under a bona fide belief. The majority relied on the Supreme Court's rulings and previous Tribunal decisions, concluding that the extended period of limitation was not applicable.Dissenting Opinion:The Vice President dissented, arguing that the appellants' non-disclosure of the brand name in their declaration or classification list amounted to suppression. He held that the extended period of limitation was justified, as the appellants did not disclose the relevant information at the appropriate time. The Vice President emphasized that the subsequent clarification and Tribunal decisions did not affect the requirement for proper disclosure at the relevant time.Conclusion:In light of the majority opinion, the appeal was allowed on the ground of limitation, and the demand for duty was held to be time-barred. The Tribunal set aside the impugned order, concluding that the extended period of limitation under Section 11A was not applicable due to the appellants' bona fide belief and sufficient disclosure to the Department.