2018 (6) TMI 869 - AT - Central Excise

Extended period of limitation - case of Revenue is that the Appellant did not provide the documents, hence the extended period is invokable - Held that - Earlier also the Tribunal has remanded back the matter to consider the time bar issue, we find that the lower authorities should have considered the fact that the demand has been made on the basis of documents which were seized by the revenue way back in 95 and 96. Clearly the show cause notice raising demand for the period March 95 to Nov 95 made vide Show cause notice dt. 10.08.99 is time barred - The revenue had issued show cause notice for the earlier period and therefore there was no reason to delay the issue of subject show cause notice in the given facts. The demand is squarely time barred - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Time-barred demand raised in show cause notice for the period March '95 to Nov '95.
2. Consideration of documents and information provided by the Appellant.
3. Applicability of the extended period for demand.

Analysis:
1. The appeal was filed against the Order-in-appeal passed by the Commissioner (Appeals) alleging non-payment of duty due to the goods being classified under a specific sub-heading without central excise registration. The Appellant contended that the demand made in the show cause notice dated 10.08.99 for the period March '95 to Nov '95 was time-barred as other show cause notices for subsequent periods were issued earlier. The Appellant argued that the department had the necessary documents and information, making the demand unjustified. The Tribunal found that the demand was indeed time-barred based on seized records and previous show cause notices, citing the case law of Nizam Sugar factory 2006 (197) ELT 465 (SC). The Tribunal set aside the impugned order and allowed the appeal.

2. The Appellant's counsel argued that all relevant information was available with the department as the sales register and sales bills were seized earlier, and the demand was calculated based on these records. The Appellant's submissions and appeals were not considered by the lower authorities, despite the information being in possession of the department. The Tribunal noted that the demand was based on documents seized in 1995 and 1996, indicating that the show cause notice issued in 1999 was time-barred. The Tribunal emphasized that the Appellant's contentions were valid and that the demand was unjustified, leading to the appeal being allowed.

3. The revenue, represented by the Assistant Commissioner, argued that the Appellant did not provide the required documents, justifying the extended period for demand. However, the Tribunal found that the demand was made based on records already in possession of the department, and the Appellant's submissions were not adequately considered. Relying on the Supreme Court judgment in Nizam Sugar factory case, the Tribunal concluded that the demand was time-barred and set aside the impugned order, granting consequential reliefs to the Appellant. The judgment was pronounced on 23/05/2018 by the Tribunal.