TMI Blog2011 (1) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... d to Government Corporations. Therefore it will ‘wilful suppression of facts’ decided against Assessee. - E/1670/03, E/3242/03 - - - Dated:- 18-1-2011 - Mr. P.G. Chacko, and Mr. Sahab Singh, JJ. Appearance: Shri V.A. Sonpal, Advocate, for appellant Shri N.A. Sayyad, Authorised Representative (JDR), for respondent Per: P.G. Chacko At the outset, there has been a debate on the question whether the appellant can pursue these appeals without clearance from the Committee on Disputes . The counsel for the appellant submits that a co-ordinate Bench, in a similar case, insisted on such clearance. In the face of this submission, the JDR has referred to the Supreme Court s judgment in ONGC vs. City Industrial Development Corporation (Maharashtra) Ltd. (2007) 7 Supreme Court Cases 39 and also to the Court s order in CCE vs. Bharat Petroleum Corporation Ltd. 2010 (253) ELT 355 (SC). In ONGC case (supra), the apex court considered a dispute between that Corporation (a Central PSU) and City Industrial Development Corporation (a State PSU) and took the view that the appellant should obtain clearance from a Committee to be constituted by the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed under Section 11AC and Rule 173Q. In a show-cause notice dated 30.3.2001, the DGCEI alleged that the appellant had cleared the goods with intent to evade payment of duty and, therefore, the extended period of limitation under the first proviso to Section 11A(1) of the Central Excise Act was invocable for recovery of the duty. An allied allegation was that the appellant had suppressed the factum of manufacture and clearance of the goods. On the same grounds, the show-cause notice invoked Section 11AB of the Act for recovery of interest on duty and Section 11AC of the Act to impose penalty on the appellant. It also proposed a separate penalty on the appellant under Rule 173Q of the Central Excise Rules, 1944 for the alleged contravention of various provisions of the Central Excise Rules. The show-cause notice alleged that the appellant had contravened various provisions of the Central Excise Rules by not taking Central Excise registration, not filing classification declaration, not maintaining statutory records, not clearing the excisable goods under cover of statutory invoices, not determining and discharging duty liability etc. In a reply submitted by the appellant, they infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . While adjudicating these show-cause notices, the Commissioner noted that the duty liability of the Irrigation Department of the State Government had already been settled by his predecessor-in-office for an earlier period by order-in-original No.25/CEX/2001 dated 5.10.2001 and that the appeal filed by the assessee against the said order-in-original stood dismissed on merits. The learned Commissioner noted that the question whether the benefit of Notification No.74/93-CE ibid. was admissible to the assessee in respect of the excisable goods cleared by them to various Corporations had been settled against the assessee by this Tribunal in order No. C-II/1549-50/WZB/2003 dated 24.6.2003 in appeals Nos. E/3792/01 and E/3270/02. On this basis, the learned Commissioner proceeded to examine whether any part of the impugned demand of duty could be held to be barred by limitation. He noted that the assessee had defaulted fortnightly payment of duty for consecutive fortnights in 2001 and, consequently, the jurisdictional Deputy Commissioner had withdrawn the facility of fortnightly payment and directed them to discharge duty liability consignment wise. It was noted that, even after the Deput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm suppression was interpreted by the Hon ble Supreme Court and it was held that, for invoking the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, wilful suppression of facts must be established. Their Lordships held that wilful suppression of facts meant suppression of facts with intent to evade duty . It would follow from this judgment of the Hon ble Supreme Court that it was enough for the adjudicating authority to establish that the appellant had wilfully suppressed material facts. Once that was established, intent to evade payment of duty stood established. It was not necessary to enquire separately whether the appellant had intent to evade payment of duty. After considering the facts and circumstances of the case, the adjudicating authority found that the appellant had suppressed the factum of manufacture and clearance of goods to various Corporations without payment of duty. According to the learned counsel, this finding is not sustainable in law. The JDR has opposed this argument, claiming support from CCE, Jaipur-I vs. Creative Engineers Pvt. Ltd. 2003 (152) ELT 77 (Tri.-Del). In the cited case, the assessee was held to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y raised in the impugned order. As the penalty imposed under Section 11AC would cover the offence of contravention of the provisions with intent to evade payment of duty , we are of the view that a separate penalty under Rule 173Q is not necessary. This penalty is set aside. 6. The learned counsel raised alternative plea for SSI benefit. This plea had been made by the appellant before the adjudicating authority also. That authority rejected the plea for want of documentary evidence. There is no documentary evidence in support of the above plea before us either. Therefore, the denial of SSI benefit to the appellant cannot be faulted. 7. In the other appeal also, we have found a challenge against the relevant demand of duty on the ground that the benefit of exemption Notification 74/93-CE was admissible to the appellant. For the reasons which we have already noted hereinbefore, the appellant is not entitled to the benefit of the said Notification and hence liable to discharge duty liability. The period of dispute in this case is July 2000 to January 2002, for which period five show-cause notices were issued vide following particulars:- (1) SCN dated 9.8.2001 for the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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