9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (9) TMI 1090 - HC - Central ExciseTime Limitation - Rejection of demand for duty raised by the appellant - rejection on the ground that the demand was made beyond the normal period of 6 (six) months from the date of issuance of the show-cause notice - HELD THAT - It is seen that the appellant has not been able to demonstrate that they had made any provisional assessment in respect of the respondent. It is also seen that the appellant had not raised any demand upon the respondent for payment of Excise Duty for the period from 28.02.1986 to 25.07.1989 and from 26.07.1989 to 28.02.1993. The appellant has not been able to demonstrate that the respondent had not paid the appropriate Excise duty by reason of fraud, collusion or any willful mistake or suppression of facts or in contravention of the provisions of the said Act. Therefore, the appellant has failed to make out a case that the period of limitation should be extended from 6 (six) months to 5 (five) years as per proviso to Sub-Section (1) of Section 11-A of the Central Excise and Salt Act, 1944 - It is also not the case of the appellant that their demand against the respondent for payment of Excise Duty was stayed by any Court, Tribunal or Forum having jurisdiction. Moreover, there is also no material to show that the provisional assessment and/or demand, if any, had translated into the final assessment order against the respondent pursuant to the judgment of the Supreme Court of India in the case of COMMISSIONER OF C. EX., SHILLONG VERSUS WOODCRAFT PRODUCTS LTD. 2002 (4) TMI 76 - SUPREME COURT . Thus, the alleged demand of the appellant for payment of Excise duty is not based on any provisional assessment. Moreover, it is not the case of the appellant that any Court, Tribunal or Forum having jurisdiction had stayed the demand for Excise Duty made against the respondent. Therefore, the Court is inclined to hold that the impugned decision of the CESTAT, thereby rejecting the contention of the appellant of the demand was barred by limitation is not liable to be interfered with. Appeal dismissed.
Issues Involved:
1. Whether the learned Tribunal was justified in emphasizing on a formal order of provisional assessment. 2. Whether the learned CESTAT was right in holding that there was no justification to demand duty beyond the normal time limit of six months from the date of issuance of the show-cause notice. Summary: Issue 1: Provisional Assessment The appellant failed to demonstrate that any provisional assessment was made in respect of the respondent. The appellant did not raise any demand for Excise Duty for the periods from 28.02.1986 to 25.07.1989 and from 26.07.1989 to 28.02.1993. The court noted that the appellant did not provide evidence of provisional assessment under Rule 9B of the Central Excise Rules, 1944. The reliance on the decision of the Supreme Court in Samrat International (P) Ltd. was countered by the respondent's citations, which demonstrated that provisional assessment requires an order under Rule 9B and material evidence of provisional clearance and payment. The court held that the appellant's reliance on Samrat International was misplaced and that the Tribunal was justified in emphasizing the need for a formal order of provisional assessment. Issue 2: Limitation for Demand The appellant could not prove that the respondent had not paid the appropriate Excise duty due to fraud, collusion, or suppression of facts, which would extend the limitation period from six months to five years under Section 11A of the Central Excise and Salt Act, 1944. The respondent began paying Excise duty under Sub-Heading No. 4408.90 from March 1993, following the court's judgment. The appellant did not demonstrate that any demand was stayed by any competent authority. The court held that the six-month limitation for making a demand for Excise duty began from 23.03.1993, and the appellant's claim was barred by limitation. The Tribunal's finding that there was no justification to demand duty beyond the normal time limit was upheld. Conclusion: Both substantial questions of law were decided against the appellant, and the appeal was dismissed with no order as to costs.
|
