2011 (3) TMI 1188 - AT - Central Excise

Period of limitation - benefit of exemption Notification No.108/95-CE denied to the appellants - appellants submits that in the appellants own case for the period January 2001 to February 2001 on identical facts, this Tribunal hold that the demands for the normal period is sustainable and if any period is beyond the normal period of limitation is not sustainable. Therefore, extended period of limitation is not invokable against the appellants - Held that - Where the projects were financed by JBIC (which is not an approved organisation to finance the projects) this Tribunal, in the appellants own case, has held that demands for normal period of limitation are sustainable, no suppression can be invokable therefore extended period of limitation is not invokable. Following the same ratio, in this case also demands within the normal period of limitation are sustainable and no penalty be imposable on the appellants as there is no allegation of fraud, collusion, mis-representation, suppression of facts or contravention of provisions of Act and Rules with intent to evade payment of duties. To calculate the normal period of limitation the period of stay by the Hon ble High Court of Andhra Pradesh is to be excluded. If this period is excluded some demands confirmed in show-cause notice dated 18.08.2005 are within the normal period of limitation. Therefore, the demands for the normal period are to be re-quantified.

Summary

Issues:
- Benefit of exemption under Notification No.108/95-CE dated 28.8.1995
- Applicability of extended period of limitation
- Imposition of penalty
- Stay order by Hon'ble High Court of Andhra Pradesh

Benefit of Exemption under Notification No.108/95-CE dated 28.8.1995:
The case involved the appellants engaged in the manufacture and supply of ACSR Moose Conductors availing exemption under Notification No.108/95-CE. The issue arose when it was found that the projects were not financed by a notified international organization as required by the exemption. Consequently, demands for duty and penalties were confirmed against the appellants. The Tribunal noted that demands within the normal period of limitation were sustainable, and no penalty was imposable due to lack of fraud or suppression of facts.

Applicability of Extended Period of Limitation:
The appellants argued that demands for a specific period were barred by limitation. The Tribunal considered the previous ruling in a similar case and held that demands within the normal period of limitation were sustainable. The Tribunal excluded the period of stay by the Hon'ble High Court of Andhra Pradesh to re-quantify demands for the normal period. As a result, demands proposed in the show-cause notice dated 28.02.2002 were confirmed, while demands in the notice dated 18.08.2005 were to be re-quantified.

Imposition of Penalty:
The Tribunal determined that no penalties were warranted in the case as there was no suppression of facts by the appellants. The interest for delayed payment was deemed payable, but penalties were not justified due to the absence of fraud, collusion, or intent to evade duties.

Stay Order by Hon'ble High Court of Andhra Pradesh:
The Tribunal considered the stay order issued by the Hon'ble High Court of Andhra Pradesh in similar cases. The period of stay was excluded to calculate the normal period of limitation, leading to the re-quantification of demands. The Tribunal allowed the appeals of certain individuals and remanded the main appellant's case back to the adjudicating authority for re-quantification of demands within the normal period of limitation. The appeals were disposed of with these observations.