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2008 (12) TMI 506 - AT - Central ExciseDemand - Time Limitation - penalty u/r 173Q - Held that - Tribunal s decision in George Maijo & Co. v. Collector of Central Excise relied upon 1987 (1) TMI 319 - CEGAT, NEW DELHI where it was held that once the penalty imposed under Rule 173Q for which the essential ingredient is intention to evade payment of duty, has been set aside, the demand of duty is barred by limitation for the reason that the Show Cause Notice has been issued beyond the normal period of limitation - appeal allowed.
Issues:
1. Upholding duty demand but setting aside penalty under Rule 173Q of Central Excise Rules, 1944. Analysis: The judgment involves the Commissioner (Appeals) upholding a duty demand of Rs. 2,30,909/- for the period from 1994-95 to 1996-97 while setting aside the penalty imposed on the appellants under Rule 173Q of the Central Excise Rules, 1944. The assessee contended that since the lower appellate authority accepted that the ingredients of Rule 173Q were not established against them and set aside the penalty, it was not permissible to confirm the demand. They argued that the Show Cause Notice issued beyond the normal limitation period invoked the proviso to Section 11AC, indicating suppression and wilful misstatement, which would bar the demand. Citing a Tribunal decision in George Maijo & Co. v. Collector of Central Excise, it was argued that if the penalty under Rule 173Q, requiring an intention to evade duty, was set aside, the demand would be time-barred due to the delayed Show Cause Notice. The Tribunal, following the precedent set in George Maijo & Co. v. Collector of Central Excise, held that if the penalty under Rule 173Q was set aside due to the absence of the essential ingredient of intention to evade duty, the demand would be barred by limitation if the Show Cause Notice was issued beyond the normal period. Applying this reasoning to the present case, the Tribunal set aside the demand confirmed against the appellants, thereby allowing the appeal. The judgment was dictated and pronounced in open court by the Vice-President, Jyoti Balasundaram, and concluded the matter in favor of the appellants based on the legal principles discussed and applied.
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