2014 (11) TMI 200 - AT - Central Excise

Invocation of extended period of limitation - Classification of Bleached Woven Fabrics - Misdeclaration of goods - Suppression of facts - Held that - Department got the clarification in the year 2001. The impugned demand for differential cess duty pertaining to the period from July, 2000 to June, 2001 was issued on 09.07.2004 invoking extended period of terms of the proviso to Section 11A (1) of the said Act. But there was no fraud, collusion, wilful mis-statement, suppression of fact or contravention of the Act or rules with the intent to evade payment of duty in the instant case. Hence there is no justification for invoking longer period of time. The demand for the period from July, 2000 to June, 2001 issued on 09.07.2004 is therefore barred by limitation and the same is not maintainable. When the demand fails to survive, the question of charging interest thereon and imposition of penalty cannot arise. - Decided against Revenue.

Summary

Issues:
1. Classification of 'Bleached Woven Fabrics' under Chapter Sub-Heading 5310.21 of CETA, 1985.
2. Short payment of cess on the cleared fabrics.
3. Imposition of penalty under Section 11AC of CEA, 1944.
4. Consideration of limitation in issuing the demand notice.
5. Appeal by the respondent assessee before the Ld. Commissioner (Appeals).
6. Withdrawal of Cross Objection (CO) by the respondent assessee.
7. Allegation of wilful misstatement and suppression of facts by the appellant.
8. Observations on limitation for the demand notice issued.
9. Justification for invoking a longer period for the demand.

Classification Issue:
The respondent classified 'Bleached Woven Fabrics' under Chapter Sub-Heading 5310.21 of CETA, 1985. The demand notice alleged short payment of cess, leading to confirmation of demand and imposition of a penalty under Section 11AC of CEA, 1944. The Ld. Commissioner (Appeals) held that the cess applicable was @ Rs. 457/- per MT, but due to the issue of limitation, the demand was considered barred. The appeal was allowed on the ground of limitation.

Limitation Consideration:
The Ld. Commissioner analyzed the evidence and found that the demand notice issued in 2004 was based on alleged wilful misstatement by the appellant. However, it was observed that there was no suppression of facts by the appellant regarding the rate of cess applicable to the 'decorative fabrics.' The demand for the period from 2000 to 2001 was considered barred by limitation as there was no evidence of fraud, collusion, or intent to evade payment of duty. Consequently, the demand was deemed not maintainable, leading to the dismissal of the Revenue's appeal.

Withdrawal of Cross Objection:
The respondent assessee withdrew the Cross Objection challenging the issue of classification of the product. The withdrawal was allowed, and the CO was disposed of accordingly.

Conclusion:
The judgment upheld the Ld. Commissioner (Appeals) order, dismissing the Revenue's appeal as devoid of merit. The demand notice for the period from 2000 to 2001 was considered barred by limitation due to the lack of evidence supporting wilful misstatement or suppression of facts. Consequently, the question of interest and penalty imposition did not arise.