TMI Blog2014 (2) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment extended period of 5 years applicable and Rule 10(1)(C) of the Central Excise Rules, 1944, corresponding to Section 11A of the Central Excises and Salt Act, 1944. Thus extended period was applicable. Hence, the show cause notice issued after one year was not barred by limitation under Central Excises and Salt Rules wherein provision is identical to the provisions under the Central Excise Act. Tribunal has not at all considered the reasoning assigned by the adjudicating authority and the appellate authority in holding that there is no suppression of material facts and thus has proceeded to set aside the order passed by the appellate authority and by holding that there is no suppression of fact which is baseless and based on conju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of law are as follows : Respondent-assessee are holders of Central Excise Registration and are engaged in manufacture of conveyors and parts thereof, industrial washing machine and parts thereof, falling under Chapter 84 of the Central Excise Tariff Act, 1985. The assessee had received 3 nos. Girija brand industrial washing machines from M/s. TVS Suzuki limited, for the purpose of refurbishing and modification. These 3 washing machines were cleared vide their invoice No. 43303, dated 1-2-2001 on payment of duty of Rs. 2,61,760/- at the rate of 16%. Since it was found that assessee is not eligible to take Cenvat credit on such goods, which are not raw material or input or capital goods for the manufacture of the final products and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reply contending that there was no suppression of material facts and wherefore the Revenue could not have invoked extended period of limitation. There was manufacturing activity and there was no intention to evade payment of excess duty and they have not evaded any central excise duty and not contravened any provisions of central excise law and the issue covered under the show cause notice is one of the matters involving interpretation of law. Hence, no penalty can be imposed on them. The objections were overruled and the adjudicating authority by order dated 2-3-2005 passed the order-in-original as follows : 1. The Modvat/Cenvat credit of Rs. 2,61,760/- availed by the assessees is treated as ineligible and I demand the same under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r referred to as CESTAT ) and the Tribunal by order dated 22-12-2006 held that since there was no suppression of facts, they availed Cenvat credit and cleared the goods on payment of duty and the same was disclosed to the department. The internal audit party had checked the records during 2002 and they did not find any discrepancy. Therefore reopening the issue after a lapse of three years on the ground that the clearance are to be re-assessed at the higher rate is clearly barred by time. There was no intention to evade payment of duty and wherefore, the appeal was allowed by holding that since there was no suppression of fact, confirmation of value addition is not sustainable and the same is barred by time and accordingly allowed the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eful consideration to the contentions of the learned counsel for the appellant. 9. The material on record would clearly show that there is suppression of fact as it clear from the order passed by the adjudicating authority and the appellate authority that there was no manufacturing activity involved in refurbishing and modification of the 3 washing machines, despite the same, Cenvat credit was claimed and though duty of Rs. 2,61,760/- was collected, the said fact was suppressed and therefore availed extended period of limitation. In view of the decision of the Hon ble Supreme Court in Mysore Rolling Mills Private Limited v. Collector of Central Excise, Belgaum - 1987 (28) E.L.T. 50 (S.C.), wherein it has been clearly held that non-disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
