2011 (7) TMI 697 - AT - Central Excise

Demand - Time limitation - Rule 173Q of the Central Excise Rules, 1944 - The material fact pertained to the value of moulds and dies to be amortized for the purpose of inclusion in the assessable value of the excisable goods manufactured by making use of such moulds and dies - The statement of the assessee, thus, appears to be in consonance with the relevant entry contained in their declaration filed under Rule 173C (3A) - Decided in favor of the assessee by way of remand to Commissioner (A)

Summary

Issues:
1. Time-barred demand of duty
2. Dropping Section 11AC penalty
3. Wilful suppression or misstatement of facts

Analysis:

Issue 1: Time-barred demand of duty
The appeal filed by the department raised concerns about the learned Commissioner (Appeals) holding a part of the demand of duty as time-barred, despite the assessee having paid the entire amount of duty demanded by the original authority. The Tribunal observed that the assessee had conceded the duty liability before the lower appellate authority and contested only against the penalty imposed under Section 11AC of the Central Excise Act. The Commissioner (Appeals) went beyond the scope of the appeal by determining the invocability of the extended period of limitation, which led to the demand of duty for a period beyond one year being considered time-barred. The Tribunal found this finding to be unjustified, supporting the Revenue's grievance.

Issue 2: Dropping Section 11AC penalty
The Commissioner (Appeals) found that the allegation of wilful suppression or misstatement of facts by the assessee was not established, based on certain correspondence and a declaration filed by the assessee under Rule 173C (3A) of the Central Excise Rules. However, the learned SDR pointed out discrepancies, indicating that the finding of the Commissioner (Appeals) was flawed due to non-application of mind. The penalty imposed by the original authority was reduced, considering only Rule 173Q applicable, and the Tribunal emphasized the relevance of proper assessment of material facts in determining the invocability of Section 11C.

Issue 3: Wilful suppression or misstatement of facts
The Tribunal highlighted discrepancies in the findings of the Commissioner (Appeals) regarding the wilful suppression or misstatement of facts by the assessee. The statement of the Executive Director of the company under Section 14 of the Central Excise Act aligned with the entry in the declaration filed under Rule 173C (3A), indicating non-disclosure of relevant facts. The Tribunal emphasized the need for a fresh decision on the appeal, ensuring a reasonable opportunity for the assessee to be heard and addressing all relevant issues with a proper application of mind to the case records.

In conclusion, the impugned order was set aside, and the appeal was allowed for remand to the learned Commissioner (Appeals) for a fresh decision in accordance with the law, emphasizing the importance of addressing all relevant issues and providing a speaking order on the matter.