9911796707
TMI Blog2010 (7) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... .7.2009 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal") in Excise Appeal No. 5672 of 2004 (Annexure P-1) claiming that the following substantial questions of law arise in these appeals for determination by this Court:- "i) Whether in the facts and circumstances of the case, the Tribunal had failed to consider whether any infraction of Rule 3A and Rule 96ZP was made out and had erroneously adjudicated the matter placing reliance solely on the ratio of this Hon'ble Court in Shri Bhagwati Steel Rolling Mills vs. Commissioner of Customs Excise, Chandigarh? ii) Whether in facts and circumstances of the case, the Tribunal was correct in attributing higher annual capacity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 356 (TRI. DELHI)?" 3. Briefly stated, the facts of the case are that the appellantcompany is engaged in the manufacture of non-alloy steel ingots opted for Compounded Levy Scheme w.e.f. 1.9.1997 declaring that they had installed crucibles of capacities of 2MT and 2.5MT and their annual capacity of production was determined by the Commissioner as 14400MT. When the Central Excise Officer visited on the night of 13.7.1999 and 14.7.1999 and made investigation, it came to light that they were having four crucibles of capacities of 2MT, 2.5MT, 3MT and 4MT and all of them were in working conditions and were installed prior to 1.9.1997. The said crucibles were being periodically serviced for maintenance by the engineers. The log sheets rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect in coming to the conclusion that the capacity of the mill of the assessee was not correctly determined by the Commissioner and the findings of the Tribunal are erroneous and based on misreading and misappreciation of evidence. Learned counsel further submitted that the Assessing Officer under Section 11A of the Act could not recover any duty under the Act after the expiry of six months as the same was beyond limitation as prescribed under the aforesaid provision. Learned counsel placed reliance on the judgments of the Hon'ble Supreme Court in Continental Foundation JT. Venture v. Commissioner of Central Excise, Chandigarh-I, 2007 (216) ELT 177 (SC), Anand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut, 2005 (188) ELT 149 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o give higher production also cannot be accepted. It does not stand to reason that the company having capacity of higher capacity crucibles of 3MT and 4MT needs to take improvised methods to enhance the capacity of crucibles of 2MT and 2.5 MT to enable higher production. The evidence is thus overwhelmingly supports the decision of the Commissioner to enhance the annual production of capacity based on 3MT and 4MT capacity crucibles. Therefore, we hold that the enhancement of annual capacity and consequently the demand of differential duty is fully justified." 7. The Tribunal after appreciation of evidence had categorically concluded that the four crucibles of 2MT, 2.5MT, 3MT and 4MT capacity had been installed by the appellant before 1.9.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e argument deserves to be rejected on two counts. Firstly, a perusal of order passed by the Tribunal shows that this point was never urged by the appellant before the Tribunal and secondly, proviso to Section 11A provides for enhanced limitation of 5 years for recovery in case of excise which has been short levied or short paid or erroneously refunded due to the reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provision of Act or Rules. Once it is held that there was intentional suppression of material information from the Department by not disclosing the installation and use of crucibles of higher capacity, the extended period of limitation shall apply in this case. The judgments, thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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