TMI Blog2016 (5) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... stantial question of law arises. - Decided against the revenue - Central Excise Appeal Defective No. - 133 of 2015 - - - Dated:- 19-4-2016 - Hon'ble Dilip Gupta And Hon'ble Ravindra Nath Kakkar, JJ. For the Appellant : Ashok Singh, Sr. S. C. For the Respondent :- Rahul Agarwal ORDER This Appeal has been filed under Section 35-G of the Central Excise Act, 1944 against the order dated 20 October 2014 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi the Tribunal . The substantial questions of law framed by the department are as follows:- (1) Whether the benefit of Notification No.08/2003-CE dated 1 March 2003 under the facts and circumstances of the case can be extended to the party ? (2) Whether the benefit of exemption notifications can be extended to the party only on the basis of the forged documents prepared subsequently? It transpires that the sole respondent-M/s Capston Rubber (India) is engaged in the manufacture and clearance of footwear parts i.e. PVC Soles and Rubber-sheets. PVC Soles are dutiable goods @ 16% while Rubber-sheets have nil rate of duty. The dispute relates to grant of benefit of Small Scale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the total value of clearance of excisable goods for home consumption exceeded ₹ 3 crores during the preceding financial years 2002-03 and 2003-04 without payment of central excise duty. A show cause notice was, accordingly, issued to the respondent requiring it to show cause as to why : (a) Central excise duty amounting to ₹ 29,02,467.00 (Rupees Twenty nine lakh two thousand four hundred sixty seven only) and education cess ₹ 22,745.00 (Rupees Twenty two thousand seven hundred forty five only) totalling to ₹ 29,25,212.00 (Rupees Twenty nine lakh twenty five thousand two hundred twelve only) which has not been paid by them on the removal of footwear parts should not be demanded under provision to Section 11A[1] of the Central Excise Act, 1944 and confirmed against them under Section 11A[2] of the Central Excise Act, 1944. Since the party have deposited ₹ 8 Lakh towards Central Excise duty detected by the Prev. Officers, the said amount should not be confirmed and appropriated against the aforesaid demand; (b) Penalty should not be imposed upon them under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appellants have declared the value of dutiable as also exempted final product, total of which exceed ₹ 3 crores thus making the assessee not entitled to the benefit of exempted notification in the subsequent financial year. Inspite of appellants having disclosed the full information in the said declaration, the Revenue has raised the Show cause notice only on 5.4.2006, i.e. beyond the limitation period. As such, we are of the view that there was no suppression or mis-statement on the part of the appellant so as to invoke the longer period of limitation. We accordingly, hold that the demand is barred by limitation. The impugned order is accordingly set aside and all appeals are allowed on the point of limitation. This order was assailed by the appellant in the High Court in Central Excise Appeal No.245 of 2013. This Appeal was dismissed with liberty to the Central Excise Department to file a review petition before the Tribunal to be decided on merits and the order of the High Court is reproduced below: We have heard Shri Ashok Singh, learned counsel for the central excise department. This central excise appeal under Section 35G of the Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently, on inquiry, were found to be fraudulent. This said application moved by the Revenue was found to be vague. The Revenue sought liberty to file a fresh and comprehensive miscellaneous application. Subsequently, another miscellaneous application was filed before the Tribunal elaborating the assertions and pleadings set out in the earlier application. These two applications were dismissed both on the ground of limitation set out under Section 35-C(2) of the Act and on the ground that the Revenue failed to establish fraud as a factor vitiating the earlier order dated 15 February 2013. It was sought to be asserted in the miscellaneous application that after the final order, copies of the original declarations filed with the department and details of receipt registers for the year 2003-04 and 2004-05 were called for and on scrutiny, it transpired that they had been tampered with and entries in the receipt registers were fraudulently inserted. The Tribunal found that merely because there were interpolations/overwritings in the receipt registers of 2003-04 would not per se lead to an inference that interpolations were by or at the instance of the assessee and that there mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal in this Tribunal, Revenue had taken any steps to either rebut the claim of the assessee or verify whether office copies of the declarations are available; (v) It is only on 26.8.2013, more than six months after the final order of the Tribunal, the Deputy Commissioner, Central Excise, Lucknow forwarded a receipt registers including of 2003-04 to the private Forensic Consultant (M/s G.P. Saxena and Son), who furnished an interim report on 29.8.2013 and a final report on 9.9.2013; (vi) On 17.9.2013, the High Court of Allahabad dismissed Revenue's appeal with liberty to file a review application before this Tribunal, with the observation that if filed, it would be decided on merits; (vii) The rectification/review application (No.61193 of 2013) was filed on 13.11.2013, beyond six months from the date of the final order (dated 15.2.2013) and an improved version of the application was filed on 21.7.2014; and (viii) Section 35C(2) of the Central Excise Act, 1944 authorises the Tribunal to rectify any mistake or amend any order (final order) passed under sub-section (1), if it is brought to our notice by an aggrieved party that the order suffers from a mis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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