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TMI Blog2014 (12) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... at the demand is highly inflated as their sale price was considered as assessable value and not cum-duty price, is also found to be incorrect in as much as in the show-cause notice itself, the sale price was treated as cum-duty price and the assessable value was determined accordingly. The next argument of the ld. Advocate is that in any case, if the demand is confirmed, they would be entitled to modvat credit. The said plea also would not hold good, at this stage, as such plea has been neither raised before the lower authorities nor in their grounds of appeals. Besides, after a period of two decades, it would be difficult and impractical to ascertain from the records about the eligibility of modvat credit. Also, I find that the ld. Advocate has simply advanced the said plea without supporting the same with any evidences. In the result, this contention also merits rejection when examined from all angles. - Decided against assessee. - Appeal No.482/07 - ORDER NO.FO/A/75573/2014 - Dated:- 17-10-2014 - DR. D. M. MISRA, J. For the Appellant : Shri K. K. Banerjee, Advocate For the Respondent: Shri K. Chowdhury, Supdt. (A.R. ORDER Per Dr. D. M. Misra : This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-payment of Excise duty and deposited an amount of ₹ 1.75 lakhs on its own volition during the adjudication proceeding. He has submitted that the Appellant had not taken out registration on the bonafide belief that fabrication of machinery would not come under the scope of Central Excise duty as there was lot of confusion on the excisability of fabrication of work during the relevant time. Further, he has submitted that there was no intention to evade duty and accordingly, there was no question of imposition of penalty under Section 11AC of the Central Excise Act, 1944 and interest under Section 11AB, which came into force subsequently. Further, the ld. Advocate for the Appellant has submitted that the demand notice issued to them, is barred by limitation as the same ought to have been issued within six months from the date of voluntarily disclosure of the facts by the Appellant i.e. from 27.07.1997. He has submitted that as there was no suppression of facts and there was no mens-rea on the part of the Appellant to evade Central Excise duty, therefore, there was no reason to invoke extended period of limitation and penal provisions against them. In support, he has referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmr. of Central Excise, Surat I Vs. Neminath Fabrics Pvt. Ltd.: 2010 (256) ELT 369 (Guj.). Rebutting the arguments that the demand is inflated and failed to consider the value as cum-duty price, the ld. A.R. for the Revenue has submitted that at Para 6.3 of the show-cause notice, it is specifically mentioned that the assessable value have been arrived at after considering sale price a cum-duty price. Further, he has submitted that at no point of time, the Appellant had raised the issue of admissibility of modvat credit, hence, the same cannot be entertained at this stage. He has submitted that the judgements cited by the Appellant, viz. Re-rolling Mills : 2003 (159) ELT 192 (Tri.) and Chamundi Steel : 1996 (81) ELT 563 (Tri.), are not applicable to the facts of the present case, as in those cases, the exemption was dis-allowed and consequently, credit was allowed, whereas, the present case, the excisable goods were manufactured and cleared in clandestine manner without payment of duty and at this stage, after two decades, it is practically impossible to verify the eligibility of modvat credit claimed for the first time, hence, the same cannot be admissible. 7. Heard both sides a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal. 17. The proviso cannot be read to mean that because there is knowledge the suppression which stands established disappears. Similarly the concept of reasonable period of limitation which is sought to be read into the provision by some of the orders of the Tribunal also cannot be permitted in law when the statute itself has provided for a fixed period of limitation. It is equally well settled that it is not open to the Court while reading a provision to either rewrite the period of limitation or curtail the prescribed period of limitation. 8. In the present case, the facts of non-payment of duty came to the knowledge of the Department on 25.07.1997 and hence, demand issued on 23.02.1999, cannot be said to be beyond the period of limitation. Therefore, there is no merit in the argument of the ld. Advocate that the demand is barred by limitation. 9. Secondly, it is argued that there was no suppression, mis-statement etc, on their part and accordingly, no penalty is imposable. From the submissions advanced by the ld.A.R. for the Revenue and also from the findings of the ld. Commissioner (Appeals), it is clear that even though the Appellant had informed about ..... X X X X Extracts X X X X X X X X Extracts X X X X
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