9911796707
TMI Blog2013 (9) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... , at the premises of three customers viz. M/s. Dhanalxmi Off Set Printers, M/s. Balaji Off Set & Printers and M/s. Kohinoor Printers all situated in Kolhapur, local divisional Central Excise Officers seized the three offset printing machines purchased by them from the appellants as they could not produce the duty paying and other connected documents. A show cause notice was issued o the present appellants (for penalty) as also earlier mentioned owners of the said machines for confiscation and penalties, within a period of six months as per the law. In this case machines were seized on 15.7.2002 and show cause notice was issued on 14.1.2003. Further the said show cause notice clearly stated in para 15 as under:- "15. Central Excise duty in respect of the said detained goods is not being demanded in this show cause notice, as separate show cause notice for the said duty evasion is being investigated and the same shall include the said duty involved on these three detained machines too." 3. Investigation in respect of the present appellant as also other two units mentioned in para 1 above continued including various statements (both of customers, owners & official of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi 2004 (164) ELT 236 (SC) (3) Bharat Bijilee Ltd Vs. CCE & Cus, Belapur 2009 (234) ELT 652 (Tri-Mumbai) (4) CCE Vs. Chemphar Drugs & Liniments 1989 (40) ELT 276 (SC) (5) Larsen & Toubro Ltd. Vs. CCE, PUne 2007 (211) ELT 513 (SC) (6) Adunik Metalliks Ltd. Vs. CCE, Cus & ST 2010 (261) ELT 480 (Tri.Kolkatta) (7) Orissa Bridge & Construction Corpn. Ltd. Vs. CCE 2011 (264) ELT 14 (SC) 6. Ld. Deputy Commissioner (A.R.) reiterated the various points made in the impugned order. Ld. A.R. stated that appellants have no case and are not even contesting on merits. They are now raising certain technical objections which are also not sustainable. Ld. A.R. argued that the first show cause notice is for the confiscation of goods, which were seized at the premises of three customers and appellants in this case were made noticee for penalty pertaining to these three machines alone. The second show cause notice is for demand of duty evaded by appellants over a period of three years. During this period, they had supplied hundred of machine on parallel set of invoices and also not declaring the whole value. All this had come ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said detained goods is not being demanded in this show cause notice, as separate show cause notice for the said duty evasion is being investigated and the same shall include the said duty involved on these three detained machines too." Thus the first show cause notice itself indicated separate show cause notice for duty, will be issued after investigations are over. (v) The second show cause notice was issued demanding duty from appellant relating to all clearances made during 1990-2000, 2000-01, and 2001-02. This show cause notice also proposed penalties on appellants as also other units, their proprietor/partner. This show cause notice invoked extended period, for the demand as investigation pointed to fraud with willful intention to evade payment of duty by the appellants by keeping parallel set of invoices and mis-declaration in the value. Under such circumstances, duty can be demanded within five years as per proviso to Section 11A. 9. Appellants main contention is that second show cause cannot be issued invoking the extended period. The Section 11A of the Central Excise Act, 1944 under which the demand has been issued and exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o doubt or it is not even disputed that the appellants were maintaining parallel set of invoices and undervaluing the goods. These acts are undoubtedly fraudulent act with intent to evade payment of duty. Thus the condition of proviso to Section 11A are undoubtedly satisfied. We also note that only one show cause notice has been issued invoking the said proviso i.e. the second show cause notice. First show cause notice did not demand any duty whatsoever and was limited to the confiscation of three machines seized in Kolhapur. We, therefore, hold that the two show cause notices are totally independent. The investigation, in the show cause notice demanding duty covers a period of three years and a large number of purchasers of the machines. The first show cause notice is limited to three purchasers and three machines that also for confiscation. The first show cause notice itself clearly indicated that the subsequent show cause notice will be issued demanding duty. We also note that the law provides the period of six months for issuance of show cause notice in case of seizure goods and five years period in case of duty short-paid due to fraud etc. 11. We have gone through the various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the above situation there was no suppression and the extended period under Section 11A was not available. 11.3 In the case of Bharat Bijilee Ltd.(supra), the issue was relating to the classification of complete lifts or parts therefore. Two show cause notices were issued the first one on 3.4.1991 for normal period and the second one invoking extended period on 5.4.1991. Tribunal following the decision of Supreme Court in the case of Nizam Sugar Factory (supra) held that the subsequent show cause notice cannot allege suppression of facts. It may be noted that the said decision of the tribunal was challenged by the Revenue before the Hon'ble Bombay High Court in respect of the extended period of limitation and the Hon'ble Bombay High Court has set aside the order of the Tribunal and matter is remanded to examine it afresh. 11.4 Another case referred by the Ld. Advocate is t Chemphar Drugs & Liniments (supra). In this case also the issue was relating to benefit of two notifications in respect of clearances of patent or proprietary medicines from 1.4.1980. The units had filed the appropriate classification list and indicated the correct factual position. It is in these circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in this context that the Hon'ble Supreme Court stated that there is no justification in invoking the extended period of limitation in the case on hand. 12. There is no dispute that the appellants were maintaining parallel set of invoices and also misdeclaring value of the goods involved. It was only based upon the intelligence and subsequent investigation extending over a period of three years covering more than 60-70 customers and analysis of various incriminating records seized during the search operation that the show cause could be issued. The present case is undoubtedly a case of fraud with willful intention to evade duty. The facts and circumstances of the present case cannot be compared with the facts of the cases quoted by the appellants. Under the circumstances we reject the contention of the appellant and held that both the show cause notice have been correctly issued and the invocation of extended period is correct in the second show cause notice. Having come to this conclusion the second contention is automatically dismissed. 13. Duty, penalty and interest on first appellant is correctly imposed. As far as penalty on the second appellant is concerned, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
