TMI Blog2014 (2) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of duty was cleared clandestinely to DTA. The documents prepared by the appellants were found to be fake and ultimately in the year 2006, the evidence collected was put to the proprietors and they admitted the clandestine clearance of the goods without payment of duty and thereafter the show cause notices were issued within five years hence the ratio of the above decisions relied upon by the Revenue are fully applicable on the facts of the present case. As the appellants are not disputing the demands on merits before the adjudicating authority nor in the present appeals, therefore we find no merit in the contention of the appellants that the demands are time barred - Decided against assessee. - Appeal No.E/65, 364,629/11-Mum - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the adjudicating authority as well as before the Tribunal is that the demands are time barred. The contention of the appellants is that show cause notices were issued after five years from the period in dispute, in view of the terms and conditions of Form B-17 Bond. As per the terms of the bond, the demands are to be made as per the provisions of Section 11A of the Central Excise Act. As per the provisions of Section 11A of the Central Excise Act, even for the duties which are short paid, the demand can be made within five years even in the case of suppression, fraud etc. In the case of appeal No. E/364/11, the demand is for the period 1.4.2002 to 31.1.2003 and show cause notice was issued on 23.7.2010. Similarly, in appeal No. E/65/11, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. Even the investigation was conducted from the landlord of the premises who in a statement, disclosed that there was no machinery or equipment to manufacture the intended goods. The proprietor in his statement in the year 2006 admitted the clearance of the goods without payment of duty in violation to the conditions of the Notification. Thereafter the show cause notices were issued. The Revenue submitted that the five-year period for issuing show cause notice in the case of suppression, fraud etc. will start from the date of knowledge. The Revenue relied upon the decision of the Hon'ble Supreme Court in the case of CCE, Mumbai vs. Kalvert Foods India Pvt. Ltd. reported in 2011 (270) ELT 643 (SC) and the decision in the case of CCE, Vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority is that the demands are time barred. In the present appeals also, the appellants are contesting the demands as time barred. The only contention of the appellants is that as per the provisions of Section 11A of the Central Excise Act, the demands are to be made within five years even in the case of fraud, misstatement etc. We find that the premises of the appellants were visited by the Revenue in the year 2000 and the records maintained by the appellants show that the raw material was procured without payment of duty by availing the benefit of Notification 1/95-CE and in the records, the same was shown to be used for intended purpose and the manufactured goods were cleared to various 100% EOUs treating the same as deemed export. In ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 11A of the Central Excise Act, held that since there was a clandestine removal of excisable goods, the period of limitation in the case would have to be computed from the date of their knowledge. Similar view has been taken by the Hon'ble Supreme Court in the case of Mehta Co. (supra). In the present case, we find that the statutory records maintained by the appellants show the use of the raw material procured without payment of duty for intended use. However, the detailed investigation was conducted from various transporters as well as buyers, which shows that in fact the raw material which was procured without payment of duty was cleared clandestinely to DTA. The documents prepared by the appellants were found to be fake and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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