2014 (4) TMI 370 - AT - Central Excise

Waiver of pre-deposit - Denial of benefit under Notification No. 108/1995-C.E. dated 28.8.1995 - Bar of limitation - Held that - appellants have been able to make out prima facie case on the ground of limitation - appellant had received the certificate from the project authority as required by the notification; the authoritys certificate clearly mentioned details required and also given the name of contractor to whom the goods were supplied and also the name of the appellant besides indicating necessary details while transfer of project and the intention behind the issue of certificate. After receiving the certificate, as per the records, the appellant submitted project authoritys certificate to the Assistant Commissioner who acknowledged the receipt of certificate and also directed the appellant to give the details of clearance to the jurisdictional Range officer under intimation to him. Thereafter, the appellant cleared the goods under invoice and in the invoice also reference of the Assistant Commissioners letter date has been indicated. There is no finding to the effect that the copies of invoice were not submitted or the directions of the Assistant Commissioner while acknowledging letter has not been followed. What emerges from the facts indicated above is that the procedure as prescribed under Notification No. 108/95 appears to have been followed meticulously. Extended period of limitation - Held that - Even if it is held that the goods have been supplied only to the project, it is doubtful that such a demand could have been made after three years invoking extended period. When all the facts are within the knowledge of department, it is doubtful whether extended period can be invoked. In any case, it is clarified in Explanation 2 of the notification that when the goods brought into the project are not withdrawn by the supplier or contractor and the expression goods are required for the execution of the projectshall be construed accordingly. This prima facie indicates that the supply could be to the contractor also. In these circumstances, we find invoking extended period for demanding duty prima facie cannot be sustained. In these circumstances, the appellant has made out a prima face case for complete waiver of pre-deposit and stay against recovery - Stay granted.

Summary

Issues involved:
Waiver of pre-deposit and stay of recovery of duty demanded on mobile crushing plants under Notification No. 108/1995-C.E. dated 28.8.1995 during a specific period.

Analysis:
The Appellate Tribunal considered the appeal seeking waiver of pre-deposit and stay of recovery of duty amounting to Rs. 1,01,94,528/- imposed on mobile crushing plants cleared by the appellants under Notification No. 108/1995-C.E. dated 28.8.1995. The Tribunal acknowledged that the appellants had raised a prima facie case on the ground of limitation. The Tribunal refrained from delving into the merits of the case at this stage, emphasizing the need for detailed consideration of the Notification, relevant documents, and the appellants' procedural compliance.

In its analysis, the Tribunal highlighted the procedural steps taken by the appellants, including obtaining a certificate from the project authority as mandated by the notification. The certificate provided detailed information, including the contractor to whom the goods were supplied, and the appellant's involvement in the project. The Tribunal noted that the appellants submitted the certificate to the Assistant Commissioner, who acknowledged its receipt and directed the appellants to provide clearance details to the jurisdictional Range officer. The appellants subsequently cleared the goods under invoice, referencing the Assistant Commissioner's letter date, indicating meticulous adherence to the prescribed procedure under Notification No. 108/1995.

Moreover, the Tribunal scrutinized the allegation that the appellants should have directly supplied goods to the project instead of the contractor and failed to demonstrate that the machineries were not withdrawn by the contractor. The Tribunal expressed doubts regarding invoking an extended period for demanding duty after three years, especially when all relevant facts were known to the department. The Tribunal highlighted Explanation 2 of the notification, suggesting that the supply could be to the contractor as well, indicating that the extended period for demanding duty prima facie may not be sustainable.

Consequently, the Tribunal concluded that the appellants had established a prima facie case for complete waiver of pre-deposit and stay against recovery. Therefore, the Tribunal granted the waiver of pre-deposit and stay against recovery during the pendency of the appeal. The judgment was pronounced and dictated in the open court by B.S.V. Murthy, one of the presiding judges.