2013 (9) TMI 933 - HC - Central Excise

Bar of Limitation Clandestine Removal of Goods - Extended period - Valuation - A show cause notice beyond the period of limitation was issued on the ground of clandestine removal of goods Held that - Following Sheffield Appliances v. CCE, Kolkata 2003 (3) TMI 373 - CEGAT, NEW DELHI - The Tribunal has recorded the findings that the department (the Commissioner himself) was aware of the marketing pattern of the company as the earlier decision was rendered in the case of company belonging to the same group - The show cause notice in that case was also issued on the same ground namely that manufacturing company and marketing company were related persons and that sale price to the related marketing company could not have constituted correct assessable value. On the ground of limitation to be sufficient and held that the demand beyond the normal period under Section 11A of the Central Excise Act is barred by limitation - The penalty on the appellant as well as its directors and officials was not found sustainable - The department is dealing with the same group of companies and thus the finding that it was aware of the marketing pattern is a finding of fact, which does not call for interference there was no illegality in the findings recorded by the Tribunal, that in the circumstances the demand beyond the normal period under Section 11A, was barred by limitation Decided against Petitioner.

Summary

Issues:
1. Delay in filing the appeal and condonation of delay.
2. Allegations of clandestine removal of goods by the respondent-assessee.
3. Knowledge of the department regarding the marketing pattern of the company.
4. Validity of the show cause notice issued by the Central Excise Department.
5. Application of Section 11A of the Central Excise Act regarding the demand beyond the normal period.
6. Sustainability of penalty on the appellant, its directors, and officials.

Delay in filing the appeal and condonation of delay:
The appeal was admitted after the appellant filed an affidavit of service by Ms. Pallabika Dutta, deeming the service on respondents as sufficient. The court considered the grounds of delay in filing the appeal as good and sufficient, thus condoning the delay and allowing the delay condonation application.

Allegations of clandestine removal of goods by the respondent-assessee:
The Central Excise Department filed the appeal alleging that the respondent-assessee did not disclose the marketing pattern of the company, which was clearing goods manufactured by another company. A show cause notice was issued beyond the limitation period on the grounds of clandestine removal of goods.

Knowledge of the department regarding the marketing pattern of the company:
The Customs, Excise & Service Tax Appellate Tribunal found that the department was aware of the marketing pattern of the company as early as 1994. The Tribunal emphasized that the department's awareness of the marketing pattern, as evidenced in previous cases, precluded the allegation of suppression of facts to evade duty payment for subsequent periods.

Validity of the show cause notice issued by the Central Excise Department:
The Tribunal held that the show cause notice issued by the department, alleging clandestine removal of goods, was beyond the normal period under Section 11A of the Central Excise Act and thus barred by limitation. The penalty on the appellant, its directors, and officials was deemed unsustainable.

Application of Section 11A of the Central Excise Act regarding the demand beyond the normal period:
The Tribunal concluded that the demand beyond the normal period under Section 11A was indeed barred by limitation, based on the department's knowledge of the marketing pattern and previous decisions related to the same group of companies.

Sustainability of penalty on the appellant, its directors, and officials:
The court found no illegality in the Tribunal's findings that the demand beyond the normal period under Section 11A was barred by limitation. Consequently, the Central Excise appeal was dismissed, upholding the Tribunal's decision regarding the sustainability of the penalty on the appellant, its directors, and officials.