2012 (4) TMI 164 - AT - Central Excise

Demand - Classification - Time limitation - Notification No.117/89 dated 27.4.89 - The contention is that for the period of 10 months ranging between December 1989 to September 1990, the demand cum Show Cause Notice was issued on 30.9.92 which is beyond the period of six months prescribed under section 11A of Central Excise Act, 1944 as it stood at the material time - Held that period involved in this case is from December 1989 to September 1990 and the Show Cause Notice cum demand notice was issued on 30.9.92 which is beyond the period of six months prescribed under section 11A of Central Excise Act, 1944 which stood at the material time - Appeal is allowed

Summary

Issues:
1. Benefit of notification No.117/89 dated 27.4.89 denied by the department.
2. Invocation of extended period for demand.
3. Disclosure of procurement of polythene quoted paper from the market.
4. Applicability of limitation of time under section 11A of Central Excise Act, 1944.
5. Adjudication on the appeal based on the limitation of time.

Analysis:
The appellant filed an appeal against the Order-in-Appeal upholding the lower adjudicating authority's decision denying them the benefit of notification No.117/89. The department contended that the appellant did not disclose procuring polythene quoted paper from the market, justifying the invocation of the extended period for demand. The appellant argued that the demand was issued beyond the prescribed six-month period under section 11A of the Central Excise Act, 1944. The appellant also highlighted that they had regularly filed classification lists. In response, the department reiterated the findings of the ld. Commissioner(Appeals).

Upon reviewing the submissions and records, the tribunal found that the period in question was from December 1989 to September 1990, with the Show Cause Notice cum demand notice issued on 30.9.92, exceeding the six-month limitation under section 11A of the Central Excise Act, 1944. The tribunal noted that the appellant had disclosed in the classification list that they received polythene quoted paper from outside, undermining the department's claim of material fact suppression. Consequently, the tribunal ruled that the demand was time-barred, setting aside the ld. Commissioner(Appeals) order. The tribunal clarified that the decision was solely based on the limitation of time, refraining from delving into the case's merits, and allowed the appeal accordingly.