TaxTMI 
TaxTMI 
2012 (8) TMI 689
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....n the following two questions :- (1) Whether there could be any intention to evade payment of duty on the part of the applicants when the applicants always had the credit balance in their RG 23A Part II Register even after discharging duty liability and at no point of time they paid duty from their PLA? (2) Whether extended period of limitation under proviso to Section 11A(1) of the Act could be invoked when the applicants always had surplus modvat credit in their statutory records and which fact has not been disputed by the Department? 3. The brief facts of the case are that M/s. Super Polyplast (Pvt.) Limited are engaged in the manufacturing of rigid PVC pipes. They were taking....
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.... It was also found that the modvat credit of Rs. 6,83,096/- was also not admissible. A show cause notice was issued under Section 11A of the Central Excise Act on 1st July, 1996 to show cause why the demand of Rs. 24,49,083/- for the period 30th March, 1995 to 31st December, 1995, except August, 1995, and the demand of Rs. 30, 91,025/- for the period of April, 1994 to March, 1995 and August, 1995 may not be confirmed. It has also been alleged that the modvat credit of Rs. 6,83,096/- has been wrongly availed, therefore, why the said amount may not be demanded and for the alleged suppression penalty may not be levied and why the PVC pipes for Rs. 11,72,011/- and the raw material valued at Rs. 11,99,720/- may not be confiscated. 4. The....
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....-allowance of modvat credit for Rs. 6,83,096/-. The Tribunal reduced the quantum of penalty from 10,00,000/- to Rs. 5,00,000/- in the case of the Company and in the case of Managing Director Sri J.K. Agrawal from Rs. 1 Lakh to Rs. 50,000/-. However, the penalty imposed on Sri T.R. Jain and Sri K.K. Gupta has been deleted by the Tribunal. 8. Heard Sri Pankaj Bhatia, learned counsel for the assessee and Sri B.K. Raghuvanshi on behalf of the respondents. 9. Learned counsel for the assessee submitted that the notice was issued on 1-7-1996 beyond the period of six months. He submitted that no case has been made out invoking the proviso to Section 11-A(1) of the Act and, therefore, the demand is barred by limitation. 10. L....
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....the applicants produced more pipes. However, we note that it is indicated nowhere that 60 parts of calcium carbonate will increase the length of pipes on prorate basis. On the contrary, we find that there is evidence on record that the contention is that more calcium carbonate will lead to increase in density/specific gravity. We find that the pipes are sold in length. There is no evidence on record to show that the use of 60 parts calcium carbonate will increase the length of the pipes. In the absence of any definite indication on this issue, we give the benefit of doubt to the appellants and hold that the demand of Rs. 30,91,025/- is not sustainable in law. 17. In regard to limitation, we note that there is a presumption that in c....
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....so reads as follows :- ''Section 11A - Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded "(1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has no....
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....16. In the present case, at the time of the search, private records were found. The assessee is not able to make out a case that the private records, which were found from the business premises, did not relate to the production of PVC pipes. On verification, it was found that in RG-I Register, the production of 50250 PVC pipes were shown, while as per private record, the actual production was 93815 and as such the production of 43565 PVC pipes were suppressed, the value of which has been determined at Rs. 1,22,45,416/-. Therefore, it is a clear case of wilful mis-statement and suppression of facts with the intention to evade the duty. In the circumstances, we are of the view that the proviso to Section 11A has rightly been invoked. Fin....