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TMI Blog2017 (5) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court is involved? (iii) Whether the demand is barred by limitation inasmuch as the Show Cause notice is not served with six months from the material period i.e. 1995-96, 1996-97 and 1997-98" 2. During the course of argument, both counsels agreed that one more question of law, ought to have been framed, that is, "Whether the authorities below have failed in appreciating in entirety the defence taken by the appellant in its reply dated 06.03.2001 ?" 2.1. We agree with this submission of the counsels, and accordingly, frame the said question of law for our consideration. 3. In order to adjudicate upon the appeal, the following broad facts are required to be noticed: 3.1.The appellant, who is in the business of manufacturing various types of electric furnaces made clearance by taking benefit of SSI Exemption Notification No.1/93 for the period in issue, i.e., 1995-1996, 1996-1997 and 1997-1998. 3.2. Upon specific intelligence being received by the Department that the SSI exemption limit of Rs. 30 lakhs had been crossed, the factory premises of the appellant were inspected on 22.05.2000. The records of the appellant were inspected, which were, admittedly, submitted by it t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,82,108/-, in addition to interest and penalty. 3.8. In the SCN, the suggestion made, was that, the appellant had suppressed clearance made over and above the exemption limit specified in Notification No.1/93, as amended for the financial years in issue, i.e., 1995-1996 to 1997-1998 vis-a-vis electric furnaces and heating elements, which fell under Chapter Sub Heading 85.14 and 85.16 of the Central Excise Tariff Act, 1985 (in short "CETA"), respectively. 3.9. In other words, the allegation was that, the excisable goods had been cleared, without following the requisite procedures and without payment of excise duty. 4. In response thereto, the appellant submitted a reply dated 06.03.2011. 4.1. In the reply to the SCN, the appellant took the following defences : (i).The SCN was not issued by a competent authority. The SCN for the extended period could have been issued, only, by the Commissioner of Central Excise. (ii).The heating element, which fell under Chapter Sub Heading 85.16 of CETA had not been fabricated by the appellant. The explanation given vis-a-vis the said aspect, in the reply, was as follows : ".... (a) We well Nichrome, an alloy and Kanthal A1 wire an alloy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the reply of the appellant, an Order-in-Original dated 16.07.2001, was passed. By virtue of the said order, the demand raised via the SCN was sustained, in its entirety. 6. Being aggrieved, the appellant carried the matter in appeal to the Commissioner of Central Excise (Appeals) (in short, the Commissioner ). The appeal did not meet with success and was accordingly, dismissed vide order dated 26.03.2003. 7. Against the order of the Commissioner, the appellant carried the matter further to the Customs, Excise and Service Tax Appellate Tribunal (in short, the Tribunal ), which met with the same fate. The Tribunal dismissed the appeal vide order dated 12.11.2010. 7.1. The appellant being aggrieved, preferred the instant appeal, before this Court. 8. In support of the appeal, arguments have been advanced by Mr.T.R.Ramesh, while, in so far as the Revenue is concerned, submissions were advanced by Mr.S.Rajasekaran. 9. It is submitted by the learned counsel for the appellant that the Tribunal failed to take into account the fact that, if, the following adjustments had been made in the aggregate clearances, then, the appellant's clearances could have been well within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue, cannot, but submit that most of the issues have not been adverted to by the Tribunal, or, the Commissioner, except the aspects pertaining to limitation and the other aspect, which is, whether the mere cutting of wires/strips from purchased Nichrome coils, which are sold, without fixing terminals, would amount to manufacture. 11. We must, however, indicate that the learned counsel has drawn our attention to the order of the Commissioner on the aspect of the authority vested in the Joint Commissioner to issue the SCN. 11.1. The relevant observations, which have been made in the Order in Original dated 16.07.2001, for the sake of convenience, are set out hereafter: "...2. With regard to the competency of Joint Commissioner to issue a notice invoking the extended proviso (1) to Section 11A(1), I am of the view that the show cause notice itself is being issued after getting the approval of the Commissioner, which is in tune with the substantial compliance of statutory requirements. Further, once the power to adjudicate the case involving suppression of facts/willful mis-statement is delegated to authorities like Additional Commissioner and Joint Commissioner etc., the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled law on the matter. There are about 16 decisions in this regard from tribunals/High Courts. We rely on two decision mentioned below..." 14.3. As indicated above, in the Order-in-original, the Joint Commissioner tried to deal with the point by observing that, since, the SCN adverted to the fact that it was issued with the approval of the Commissioner of Central Excise, it would settle the matter. 14.4. Furthermore, the Joint Commissioner went on to observe, once, the power to adjudicate the case involving suppression of facts/wilful mis-statement is delegated to an authority like the Additional Commissioner and the Joint Commissioner etc., the power to issue notice involving such offences is also bestowed concurrently, along with the power to adjudicate. 15. According to us, the conclusion reached in the Order-in-Original, in this behalf, is flawed for several reasons. In so far as the first reason is given, it assumes that, since, a statement has been made in the SCN, it would be correct. It was, to our minds, incumbent upon the Joint Commissioner to advert to the document, by which, the Commissioner of Central Excise had approved the issuance of SCN by the Joint Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed regularly along with requisite invoices by the appellant is, in our view, clearly insufficient. To our minds, the observation is general in nature. A charge of suppression is required to be levelled with specificity and, it is only when an assessee is unable to rebut such a charge with relevant material, that a conclusion of suppression can be reached by an Adjudicating Authority. 16.3. To be noted, as to whether mere cutting of wires / strips from the purchased coils of NIchrome, without fixing terminals, would amount to manufacture, the Tribunal has merely replicated the findings of the Commissioner. The Tribunal has not examined as to whether such wires / strips were marketable. There is no discussion on this aspect of the matter (see Bhor Industries ltd. vs. CCE Bombay, 1989 (40) ELT 280 SC and UOI vs. Indian Aluminium Co., 1995 (77) ELT 268, SC. 16.4. Furthermore, it appears that the Tribunal has supported its conclusion, by relying upon the statement given by one of the partners, to which, we have made a reference above. 17. In view of what is adverted to above, and, in particular, on account of failure of the authorities below to discuss the issues and/or the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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