9911796707
TMI Blog2011 (3) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... pany have been permitted to work as 100% Export Oriented Undertakings, by the Government of India. The two units of the petitioner company are known as "Unit No. 1" and "Unit No. 2", where the petitioner company is manufacturing deoiled cakes of edible oil seeds for the purpose of their export to foreign countries. The petitioners have been granted necessary permissions by the Department of Industrial Development, Ministry of Industries, Government of India to work as a 100% Export Oriented Units. Pursuant to the letter of permission issued by the above referred Ministry, the petitioner company has been producing deoiled cakes of edible oilseeds and such deoiled cakes which are classified under SH No. 2302.00 of the Schedule to the Central Excise Tariff Act, 1985, were being exported by the petitioner company to foreign countries. 3. During the manufacture of deoiled cakes, a by-product, namely. Soyabean Solvent Extraction Raw Oil/Crude Oil falling under SH No. 1503.00 of the Tariff emerges. The petitioners' units are, however, allowed to operate as 100% EOUs for such product which is a fact also mentioned in the letter of permission issued in favour of the petitioners. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944, and accordingly, the petitioner No. 1 company was required to pay excise duties on the said by-product as per the rates of customs duty applicable to similar goods imported into India, although similar goods manufactured in India were chargeable to nil rate of duty under SH No. 1503.00 of the Tariff. The said six show cause notices came to be issued by the third respondent herein from time to time, firstly in May 2000, which was revised in December 2000, secondly in March 2001 and thirdly in September 2001. The show cause notices culminated into six separate orders confirming demand of duty totalling to Rs. 86,09,315/- for Unit No. 1 and Rs. 2,09,03,950/- for Unit No. 2, by holding that the petitioner company was obliged to pay excise duty on by-products in accordance with the rates of customs duties on similar goods imported into India. The petitioners have filed appeals against the above referred six orders along with stay applications which were pending before the Commissioner of Central Excise & Customs (Appeals) at the relevant time when the present petition came to be filed. 5. It is the case of the petitioners that when the petitioner company was thus, contesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the knowledge of the Department, six show cause notices came to be issued from May 2000 onwards and six orders in original came to be passed thereafter, in July 2002, the Commissioner by issuing show cause notices in question has no power to allege suppression of facts to invoke larger period of limitation. It was submitted that there is nothing on record to indicate as to what was the new evidence that was noticed showing suppression, etc., for invoking the larger period of limitation. It was further submitted that the petitioners had duly filed declarations under Section 173B of the Act and as such, this is not a case of clandestine removal so as to invoke the extended period of limitation. Referring to the provisions of Section 11A of the Act, it was pointed out that the normal period of limitation for initiating the proceedings under the said provision is one year from the relevant date and that for the purpose of invoking the proviso thereto, there has to be a finding as regards the fraud, mis-statement, suppression, etc., with an intent to evade payment of duty. It was urged that when there were six show cause notices on the same reasoning covering normal period with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Tariff Act, 1985 without payment of central excise duties. It was submitted that in the circumstances, the impugned show cause notices have been issued pursuant to intelligence gathered and investigation carried out pursuant thereto, in the circumstances, it cannot be said that the present show cause notices as well as the earlier show cause notices have been issued on a similar set of facts. According to the learned counsel if the Department had been aware of the above referred facts at the relevant time when the earlier show cause notices were issued, there was no reason for the Department not to have initiated proceedings in relation to the period in question. It was submitted that it was only pursuant to the investigation carried out, that the Department became aware of the illegality in respect of the period in question, in the circumstances, the ratio laid down in the case of Nizam Sugar Factory v. Collector of Central Excise, A.P. (supra) as well as the other decisions of the Supreme Court would not be applicable to the facts of the present case. It was further submitted that though the allegations in both the show cause notices are the same, there is additional mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi (supra), the Supreme Court held thus : "[4] In the case of M/s. P & B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in 2003(2) SCALE 390, the question was whether the extended period of limitation could be invoked where the Department has earlier issued show cause notices in respect of the same subject-matter. It has been held that in such circumstances, it could not be said that there was any willful suppression or mis-statement and that therefore, the extended period under Section 11A could not be invoked. [5] In our view, the principles laid down in above case fully apply here. As earlier proceedings in respect of same subject matter were pending adjudication, it could not be said that there was any suppression and the extended period under Section 11A was not available." 13. In Nizam Sugar Factory v. Collector of Central Excise, A.P. (supra), the Supreme Court after considering the decisions referred to above, held that the allegation of suppression of facts against the appellant therein could not be sustained. The Court held that when the first show cause notice was issued, all the relevant facts were in the knowledge of the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to intelligence gathered by the central excise authorities and statements recorded. However, though there is a reference to visit by the central excise officers to the factory of the petitioners, the date of such visit has not been mentioned. However, the statements of the authorized signatory have been recorded on 17-1-2000 and 23-3-2000, statement of the President (Works) of the Unit No. 1 had been recorded on 21-3-2000 and 24-5-2000 under Section 14 of the Central Excise Act and statement of the Director had been recorded on 19-12-2000. In this regard, it may be pertinent to note that the earlier show cause notices came to be issued on 4-5-2000, 12-1-2001 and 26-6-2001, that is after most of the statements were recorded and as such, the reference to intelligence in the impugned show cause notices is of no consequence, since all the said facts were already before the central excise authorities at the time when the earlier show cause notices came to be issued. Therefore, it cannot be said that the impugned show cause notices are based on new or different facts than the earlier ones. Thus, the present case would stand squarely covered by the above referred decisions of the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
