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Sapna Re-Rolling Industries Versus Commissioner of Central Excise, Aurangabad

2017 (11) TMI 271 - CESTAT MUMBAI

Applicability of provisions of law - relevant time - the provision of law as it existed at the time of offence would be applicable or the provision of law as it existed at the time of show-cause notice? - Held that: - The courses of action under Section 11A (1A) arises at the time of issue of show-cause notice and therefore, the law as applicable at the time of issue of show-cause notice should be made applicable - reliance placed in the case of ANEJA PROPERTY DEALER Versus COMMISSIONER OF C. EX .....

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ing Industries and Shri Neelathil Raichel Chacko, partner of the main appellant. M/s.Sapna Re-Rolling Industries (SRI) are engaged in manufacture of Iron & Steel Products, namely, MS Bars of various sizes falling under Chapter No.72 of the CETA, 1985. They had cleared 186.860 MTs of MS Bars during the period 03/02/2010 to 10/12/2010 without accounting for in their books and without payment of Central Excise duty. A show-cause notice was issued to the appellants and the demand was confirmed a .....

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Excise Act. Ld. Counsel pointed out that the law changed with effect from 08/04/2011. The impugned order fails to grant the benefit under the law as it existed when the offence was committed. The impugned order applies the law as it existed when the show-cause not was issued. Ld. Counsel relied on the decision of the Tribunal in the case of Kedarnath Dubey Order No.A/86851-86859/16/SMB dated 24/02/2016, 3. Ld. AR relies on the impugned order. He pointed out that the show-cause notice was issued .....

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hat the grounds of appeal do not give any arguments as to why the provisions as it existed at the time of offence should be applied and not the provisions as it existed at the time of show-cause notice. Prior to 08/04/2011, the Section 11A read as (1A) follows: 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) .................. (a) .................. (b) the person chargeable with the duty, may, before service of notice under clause (a), .....

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e provisions of this Act or the rules made thereunder. However, it appears that appellant, in appeal, is relying upon the same provisions as existed on the date of offence instead and seeks relief. I find that the relevant period of offence in the show cause notice is February to December, 2010. During this period, Section11A (1A) of the Central Excise Act, 1944 as was in force, provided: (1A) When any duty of excise has not been levied or paid or has been short-levied or short paid or erroneous .....

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duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice. 4.1 In the instant case, the appellants have claimed that they have paid the duty along with interest and 25% of penalty within one month of receipt of show-cause notice. Thus, if the law as it existed prior to 08/04/2011 is applied, this proceedings against appellant would stand concluded. The Commissioner (Appeals) has observed as follows in this regard: So the decision before .....

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e. The relief claimed by the appellant is by way of relying on certain procedures but the application of such procedures depends directly upon the date of issue of show-cause notice. Hence, the relevant date for the application of provisions of Section 11A(1A) and proviso to Section 11 (2)/Section 11A (1) (b) of Central Excise Act, 1944 as existing on 10/10/2012, and not Section 11A(1A) and proviso to Section 11 (2) as existing during February to December, 2010. 4.2 The appellants have not given .....

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