2014 (5) TMI 757 - AT - Central Excise

Duty demand - Invocation of extended period of limitation - Held that - From the facts available on record it is observed that both the show cause notice are issued invoking extended period and pertain to the period prior to visit of the Central Excise officers on 29.6.2000. It is not the case in the present proceedings that subsequent show cause notice is issued for the extended period after the visit of the Central Excise officers for the same facts - second demand show cause notice, also for the period prior to the date of the visit of the officers, cannot be considered as time barred when the same is issued within a period of five years from the relevant date as per the provisions of Section 11A of the Central Excise Act, 1944 - Following decision of Hi-Tech Needles (P) Limited vs. CCE Allahabad 2012 (10) TMI 384 - CESTAT, NEW DELHI - Decided in favour of Revenue.

Summary

Issues:
1. Whether extended period for demanding duty can be invoked for a second show cause notice on the same issue after being invoked for an earlier period.
2. Whether the second show cause notice for the period 1999-2000 was time-barred.

Issue 1: Extended Period Invocation
The appeal was filed by the Revenue challenging the OIA passed by the Commissioner (Appeals) which allowed the extended period for demanding duty for the period 1999-2000 to be invoked in a second show cause notice on the same issue after being invoked for the earlier period 1998-99. The Revenue argued that both show cause notices were issued prior to the visit of Central Excise officers on 29.06.2000 and that the second notice was not for a period after the officers' visit. The Tribunal observed that the second show cause notice was not issued for a period after the visit of officers, as seen in the case of Nizam Sugar Factory vs. CCE. The Tribunal also referred to the decision in Hi-Tech Needles (P) Limited vs. CCE Allahabad to support its view that the second demand notice, even for a period before the first notice, can be valid within the five-year limit from the relevant date as per Section 11A of the Central Excise Act, 1944.

Issue 2: Time-Barred Second Show Cause Notice
The Tribunal considered the arguments presented by the Revenue and the records of the case. It was noted that both show cause notices invoked the extended period and related to the period before the officers' visit on 29.6.2000. The Tribunal held that the second demand show cause notice, even for a period before the visit of officers, cannot be considered time-barred when issued within five years from the relevant date as per Section 11A of the Central Excise Act, 1944. Therefore, the Tribunal allowed the appeal filed by the Revenue and restored the order of the Adjudicating authority.

In conclusion, the Tribunal allowed the appeal filed by the Revenue, upholding the invocation of the extended period for demanding duty in a second show cause notice on the same issue for the period 1999-2000. The Tribunal found that the second notice was not time-barred as it was issued within the five-year limit from the relevant date as per the provisions of the Central Excise Act, 1944.