TMI Blog2008 (2) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, we are of the opinion that no substantial question of law is arising from the order of the CESTAT. - 28 of 2008 - - - Dated:- 15-2-2008 - Satish Kumar Mittal and Rakesh Kumar Garg, JJ. [Order per : Satish Kumar Mittal, J.]. - This appeal filed by the revenue under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as 'the Act') has been directed against the order dated 18-6-2007, passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as 'the CESTAT'), whereby E/Appeal No. 178/95 filed by the respondent-assessee, has been allowed and the order dated 24-11-2004, passed by the Collector of Central Excise, New Delhi (hereinafter referred to as 'the Collector'), has been set aside. 2. In this appeal, the following substantial question of law has been raised by learned counsel for the appellant for consideration of this Court : Whether in the instant case duty can be demanded from the party under the proviso to Section 11A(1) of the Central Excise and Salt Act, 1944, by invoking extended period of limitation of five years, when a show cause notice has been issued to the party for the normal period, before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25,00,000/- was imposed under Section 173Q of the Central Excise Rules, 1944. 5. Against the said order, the assessee filed appeal before the CESTAT. which has been allowed and the order passed by the Collector has been set aside, while holding that in view of the decision of the Supreme Court in ECE Industries Ltd. v. CCE, New Delhi, 2004 (164) E.L.T. 236, the extended period of limitation under proviso to Section 11A of the Act cannot be invoked in the facts and circumstances of the case. It was, thus, held that the demand is barred by limitation. The CESTAT has taken the view that in the earlier show cause notice dated 29-4-1993 for demand of duty for the period from 1-10-1992 to 11-3-1993, which was confirmed by the adjudicating authority and upheld by the Tribunal vide order dated 5-10-1998, there was no allegation that the assessee suppressed any material fact with intent to evade payment of duty. In the said notice, it was alleged that all parts transferred from M/s. Escorts Ltd. (Tractor Equipment Division) (the assessee herein) to M/s. Escorts Ltd. (Tractor Division) were not being used captively by the Tractor Division as some of the parts were sold in open market throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the. person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions o[ this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words "one year", the words "five years" were substituted : Explanation : Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppression or mis-statement of facts and the extended period of limitation under proviso to Section 11A of the Act was not available to the revenue. The Supreme Court in the case of M/s. P B Pharmaceuticals (P) Ltd. v. Collector of Central Excise (supra) has taken the view that in a case in which a show cause notice has been issued for the earlier period on certain set of facts, then, on the same facts another show cause notice based on the same/similar set of facts invoking the extended period of limitation on the plea of suppression of facts by the assessee cannot be issued as the facts were already in the knowledge of the department. It was observed in para 14 of the said judgment as follows : "14. We have indicated above the facts which make it clear that the question whether M/s. Pharmachem Distributors was a related person has been the subject-matter of consideration of the Excise authorities at different stages, when the classification was filed, when the first show cause notice was issued in 1985 and also at the stage when the second and the third show cause notices were issued in 1988. At all these stages, the necessary material was before the authorities. They had then ..... X X X X Extracts X X X X X X X X Extracts X X X X
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