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TMI Blog2011 (1) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... lopment Corporation (a State PSU) and took the view that the appellant should obtain clearance from a Committee to be constituted by the Central Government. The Committee was directed to be constituted with the following composition:- (1) The Cabinet Secretary of the Union; (2) The Chief Secretary of the State; (3) Secretaries of the departments concerned of the Union and the States; and (4) The Chief Executive Officers of the undertakings concerned. The case on hand was kept pending so that the appellant could produce clearance from the above Committee for prosecuting the case. In the case of BPCL (supra), a two-Judge Bench of the apex court examined the question and took the view that the question should be revisited by a Larger Bench of the Court. Accordingly, the Registry of the apex court was directed to place the matter before the Hon'ble Chief Justice of India for appropriate orders. That view was taken after noting that the working of the Committee on Disputes had failed. The Cabinet Secretary of the Union had also expressed the same view before the apex court. In the present case before us, the question is whether we should wait for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records, not clearing the excisable goods under cover of statutory invoices, not determining and discharging duty liability etc. In a reply submitted by the appellant, they informed the Commissioner that they had since obtained registration from the department as per the Superintendent s letter dated 11.5.2001, that they were not aware of the above procedure, that they had since filed classification declaration and that they would be clearing excisable goods henceforth on payment of duty and by following the Central Excise procedure. They submitted that they had no intention to evade payment of Central Excise duty. Before the adjudicating authority, they raised the alternative plea of exemption under SSI notifications applicable to the period of dispute. In adjudication of the dispute, the learned Commissioner rejected the plea for SSI exemption on the ground that such plea was not supported by any documentary evidence. He also noted that the appellant was very much aware of the fact that they were not entitled to the benefit of Notification No.74/93-CE dated 28.2.1993 which provided for exemption from payment of duty only on those excisable goods which were cleared from a manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional Deputy Commissioner had withdrawn the facility of fortnightly payment and directed them to discharge duty liability consignment wise. It was noted that, even after the Deputy Commissioner s order, the default continued. The Commissioner also noted that only 58% of the duty demand had been discharged till date. In the facts and circumstances of the case, he confirmed the entire demand against the assessee and imposed a penalty of Rs.50 lakhs on the assessee under Rule 173Q of the CER, 1944/Rule 25 of the CER, 2001. 4. After examining the records and hearing both sides, we note that the question whether, during the material period, the appellant was entitled to the benefit of Notification 74/93-CE dated 28.2.1993 in respect of specified goods cleared by them to State Government Corporations is no longer res integra inasmuch as this issue stood settled by this Bench in order No. C-II/1549-50/WZB/2003 dated 24.6.2003 in appeal Nos. E/3792/01 and E/3270/02 (Executive Engineer, Irrigation Department vs. CCE, Pune-I). That decision of this Bench denying the benefit of the above Notification to the appellant in respect of the specified goods cleared to various State Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in law. The JDR has opposed this argument, claiming support from CCE, Jaipur-I vs. Creative Engineers Pvt. Ltd. 2003 (152) ELT 77 (Tri.-Del). In the cited case, the assessee was held to have suppressed a material fact before the department thereby inviting invocation of the extended period of limitation under the proviso to Section 11A(1) of the Act. It was found that the assessee had neither informed the department about the manufacture of excisable goods, nor even consulted them about its excisability. The plea of bona fide belief, raised by the assessee, of non-excisability of their product was also rejected. The JDR claims support from this decision of the Tribunal. In the present appeal also, there is an averment to the effect that the appellant was not aware of dutiability of their product, nor of the Central Excise procedure to be followed. We find it difficult to accept this excuse. Exemption Notification No. 74/93-CE was abundantly clear in its terms. It clearly stated that the exemption would be admissible to specified goods cleared from the manufacturing unit of one department to another department of the State Government. The appellant cannot be heard to say that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y liability. The period of dispute in this case is July 2000 to January 2002, for which period five show-cause notices were issued vide following particulars:- (1) SCN dated 9.8.2001 for the period July 2000 to September 2000; (2) SCN dated 9.11.2001 for the period October 2000 to December 2000; (3) SCN dated 5.2.2002 for the period January 2001 to March 2001; (4) SCN dated 7.5.2002 for the period April 2001 to June 2001; (5) SCN dated 26.7.2002 for the period July 2001 to January 2002. The learned JDR has submitted that each of these show-cause notices was issued within a period of one year from the due date for filing of return. The learned counsel has contested this claim, but he is not able to furnish the dates on which the returns were actually filed, nor even the due dates for filing of returns. In this scenario, we have to hold that the entire demand of duty in this case is within the normal period. The appellant is liable to discharge the entire duty liability. In this case, the appellant has a grievance that they should not have been mulcted with a penalty of Rs.50 lakhs under Rule 173Q. We find that the appellant had admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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