TaxTMI 
TaxTMI 
2015 (3) TMI 734
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....dents. 2. This Tax Appeal was admitted on the following substantial questions of law :- "1. Whether or not period of five years provided under proviso to Section 11A(i) can bar the demand of Central Excise duty when the clearance are affected by reason of willful mis-statement and suppression of facts and in contravention of the provisions of the Act and Rules ? 2. Whether the CESTAT is empowered not to impose penalty under Rule 173-Q of Central Excise Rules, 1944 on the assessee who evaded Central Excise duty by suppression of facts and in contravention of Rules under Central Excise Law ?" 3. The brief facts are that the respondent is the processor of man made fabrics. On 16.9.96, the Officers of Central Excise visited the godo....
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....assed by the Commissioner of Central Excise & Customs, Surat - I, the respondent herein preferred Appeal before the Customs, Excise and Service Tax Appellate Tribunal, West Regional Bench at Mumbai which came to be allowed by the judgment and order dated 20.12.2005 and the order passed by the Commissioner dated 11.1.2002 was quashed and set aside. 5. Mr. Gaurang H. Bhatt, learned Central Government Standing Counsel appearing for the department has urged that in view of Section 11A of the Central Excise Act, 1944, as it stood at the relevant time, the period of issuing show-cause notice from 16.9.1996 was six months and in view of the proviso contained to the Section, if any suppression of material facts of fraud was detected, then extend....
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....relates to 24.6.96 to 13.9.96 and the show-cause notice has been issued dated 27.3.2001. The demand is hopelessly time barred, because the full facts were in the knowledge of the Department when the show-cause notice dated 20.4.1998 was adjudicated upon and the period in the present appeal is very well covered in the show-cause notice dated 20.4.1998. Therefore, the question of invoking the extended period does not arise in the matter. He submitted that the extended period cannot be invoked; that no evidence has been brought on record to prove the charge of illicit removal; all records of inward and outward processed fabrics in Parag House have been maintained by the Accounts Department of the Company's inward details of grey fabrics an....
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.... to the department. 9. The findings recorded by CESTAT in paragraphs 12 and 13 is extracted below :- "12. The earlier appeal filed by the appellants before Hon'ble CAGAT reported in Parag Industries P. Ltd. Vs. CCE, Surat-I - 2000 (121) ELT 540 (TWZB), which has been decided in favour of the appellants also stands in the way of the Department invoking the extended period of limitation, particularly when the Department has not filed any appeal against the said order. Besides, the fact of the settlement in the KVSS, as per the certificate dated 23.3.1999 as at page No.164 mentioned above, also stand in the way of Department to invoke the extended period. The learned counsel specifically drew our attention to para 28 of the impugned ....
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....er the Trade Notice issued by the Surat Commissioner, which was based on the CBEC order dated 31.12.1993. The learned counsel has already submitted that imposition of penalty is totally illegal as no specific clause of Rule 173-Q (1) of CER of 1994 has been mentioned. We fully agree with the contention of the learned counsel that in the absence of the specific contravention, imposition of penalty is totally vague and not sustainable. We, therefore, set aside the impugned order and allow the appeals filed by the appellants." 10. Further, the Hon'ble Apex Court in Nizam Sugar Factory v. Collector of Central Excise, Andhra Pradesh, 2006 (197) E.L.T. 465 (S.C.) has held that where all relevant facts were not in the knowledge of the autho....