1997 (12) TMI 221 - AT - Central Excise

Summary

Issues:
1. Confirmation of demand of excise duty and imposition of penalty.
2. Dispute regarding spare parts not accounted for in excise registers.
3. Allegation of suppression of production and removal of spare parts without payment of duty.
4. Contention on limitation period under the proviso to Section 11A of the Central Excise Act, 1944.
5. Payment made under protest before the show cause notice.
6. Calculation of limitation period and demand confirmation.

Analysis:

1. The appellant, engaged in manufacturing powerlooms and spare parts, filed price lists for clearance of goods. The dispute arose concerning spare parts covered by a price list for the period October 1982 to September 1987. During an inspection, it was discovered that spare parts produced for replacement were not accounted for in the excise registers, leading to a demand of duty and penalty. The appellant argued that the spare parts' cost was included in the original price declared in the price list, but failed to provide evidence supporting this claim. The tribunal agreed with the lower authority that duty on spare parts had not been paid at the time of clearance of the machines.

2. The show cause notice issued to the appellant alleged suppression of production and removal of spare parts without payment of duty, invoking the larger period of limitation under the proviso to Section 11A of the Act. The appellant contended that the notice lacked specific averments required for invoking the extended limitation period. However, the tribunal found that the notice contained sufficient allegations, supported by statements from company officials, to justify invoking the proviso to Section 11A. As the reply to the notice did not challenge these specific averments, the tribunal upheld the validity of the demand for the preceding five years.

3. The demand was confirmed for the period from October 1982 to September 1987, with a part of the claim potentially barred by limitation. The respondent argued that the payment made under protest before the show cause notice initiated the limitation period. The tribunal clarified that the limitation period under the proviso to Section 11A would start from the relevant date defined in the Act. It was determined that part of the demand was indeed beyond the stipulated five-year period, necessitating recalculations by the adjudicating authority.

4. Consequently, the tribunal set aside the impugned order and remanded the case to the adjudicating authority for confirmation of demand within the limitation period specified in the Act and for reassessment of the penalty amount. The appeal was allowed with the specified modifications.