2011 (8) TMI 690 - AT - Central Excise

Extended period of limitation - Appellant manufacturers of aerated water - Held That - In view of Nizam Sugar Factory, (2006 (4) TMI 127 - SUPREME COURT OF INDIA), when during first SCN relevant facts were in knowledge, second and third show-cause notices the same/similar facts could not be taken as suppression. - Order set aside.

Summary

Issues:
1. Whether the show-cause notice invoking the extended period is invocable in this case.
2. Whether the demands raised against the appellants are sustainable.
3. Whether the cleaning charges of the bottles are liable for duty payment.

Analysis:
1. The appellants appealed against an order demanding differential duty, interest, and penalties under the Central Excise Act/Rules. The issue revolved around the collection of additional charges for sales promotion, publicity, and bottle cleaning from customers without discharging duty liability. Show-cause notices were issued for different periods, with earlier demands dropped. A subsequent notice invoked the extended period, leading to the current appeal.

2. The appellants argued that the extended notice was time-barred based on legal precedents like Nizam Sugar Factory vs. CCE and ECE Industries Ltd. vs. Commissioner. They contended that the cleaning charges did not constitute manufacturing, citing Vijayawada Bottling Co. Ltd. vs. CCE. The department claimed suppression of facts and upheld the demands, emphasizing the lack of price declarations and debit note details.

3. The Tribunal cited legal precedents like P & B Pharmaceuticals (P) Ltd. vs. CCE and ECE Industries Ltd., holding that the extended period cannot be invoked for the same subject matter without wilful suppression. Referring to the Vijayawada Bottling Co. Ltd. case, it concluded that the cleaning charges issue was settled. Consequently, the Tribunal allowed the appeals, setting aside the impugned order with any consequential relief.