2017 (12) TMI 432 - AT - Central Excise

Validity of SCN - extended period of limitation - Valuation - Held that - earlier two show cause notices were issued on the same issue and this being third show cause notice on the same issue and that the third show cause notice issued on the same set of facts by invoking proviso for extension of time limit is contrary to the ruling by Hon ble Supreme Court in the case of Nizam Sugar Factory 2006 (4) TMI 127 - SUPREME COURT OF INDIA - the SCN dated 01.10.2009 is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Interpretation of the proviso to sub Section (1) of Section 11A of Central Excise Act, 1944 for demanding differential Central Excise Duty.
2. Bar on limitation for issuing show cause notices based on previous similar notices.

Analysis:

Issue 1:
The appeal was against an Order-in-Appeal passed by the Commissioner (Appeals) regarding the valuation of goods manufactured by the appellant under Chapter sub-Heading No. 2102.10 of the Central Excise Tariff Act, 1985. The Revenue contended that the prices at which the goods were sold from the depots should be considered for determining the transaction value. A show cause notice was issued demanding differential Central Excise Duty, which the appellant argued was barred by limitation. The appellant cited previous show cause notices on the same issue and relied on the ruling of the Hon'ble Supreme Court in the case of Nizam Sugar Factory. The Commissioner (Appeals) set aside the Order-in-Original and remanded the matter for fresh adjudication. On appeal, the Tribunal held that the show cause notice was not sustainable as it was the third notice on the same issue, contrary to the ruling in the Nizam Sugar Factory case. Consequently, the impugned Order-in-Appeal was set aside, and the Order-in-Original did not stand in law. The appeal was allowed, granting the appellant consequential relief as per law.

Issue 2:
The appellant argued that the show cause notice dated 01.10.2009 was not sustainable as it was the third notice on the same issue, invoking the proviso for an extended time limit. Both the appellant's counsel and the Assistant Commissioner agreed that the case fell within the purview of the Nizam Sugar Factory ruling. The Tribunal concurred, holding that the third show cause notice on the same facts, invoking the proviso for an extended time limit, was contrary to the Nizam Sugar Factory judgment. Consequently, the show cause notice was deemed unsustainable, leading to the setting aside of the Order-in-Appeal and the Order-in-Original. The appellant was entitled to consequential relief as per law.