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TMI Blog2018 (12) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... evade Central evade Excise duty. Another supplementary show cause notice was issued on 25.07.1996 making a reference to the earlier SCN dt. 17.5.1996 proposing demand of Rs. 78,14,418/-. The supplementary SCN, on similar grounds of the earlier SCN inter alia proposed demand of Special Excise Duty of Rs. 6,29,868/-. In adjudication, the proposals made in the notices were confirmed vide Order-in-Original No.22/2000 dt.31.10.2000 confirmed total demand of Rs. 84,44,286/- and also imposed a penalty of Rs. 30 lakhs in terms of Rule 173Q of Central Excise Rules, 1944. On appeal, the CESTAT Chennai vide Final Order No.516, 517/2010 dt. 04.05.2010 inter alia, concurred with the adjudicating authority that impugned goods cannot be considered as Ayurvedic medicine nor could the same be extended exemption from excise duty; that appellants had not disclosed all the ingredients, hence charge of suppression has been rightly held to have been proved. The Tribunal in the said order extended the benefit of cum-duty assessment, however upheld the remaining portion of the adjudication order. On appeal, the appellants preferred a C.M.A. No.2759/2010 with the Hon'ble High Court of Madras who vide their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.1046 and 1093 of 2018, are set aside. The matters are remitted to CESTAT, Madras. Accordingly, as consented by parties, a direction is issued to the Tribunal. 7. With the above direction, the Civil Miscellaneous Appeals are disposed of. No costs." Hence the matter has once again come up before the Tribunal. 3. Today when the appeal came up for hearing, on behalf of the appellant, Shri R.Janardhanan Pillai, Ld.Consultant made oral and written submissions which can be summarized as under : (i) The Hon'ble High Court vide para 11 of the judgement has accepted that the date of inspection has a bearing in deciding the period of limitation which means, show cause notice is issued within five years or not from the date of knowledge. The date of knowledge is attributable to 22.10.1990 on which date, the departmental officers visited the premises and accepted the 173B declaration and permitted clearance of the goods as per the declaration. (Copy of the letter addressed to the Assistant Commissioner by the assesse showing the following endorsement made by the Supdt enclosed). "Received declaration. Permitted Sd-/- 22.x.90" (ii) It is this date which is the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge regarding the activities of the appellant and taking into consideration the date of corrigendum as the date of issue of the show cause notice, the demand is barred by limitation. Even otherwise both the show cause notices are barred by limitation taking the date of knowledge as 22.10.1990, as the period of dispute starts from 17.5.1991 only. In other words suppression can be alleged only upto 21.10.1990. Reliance is placed in the judgement of the Bombay High Court in the case of Dharampal Lalchand Chug reported in 2015 (323) ELT 753 (Bom.) wherein it is held that whatever may be the magnitude of suppression of fact, an authority has no power to issue show cause notice beyond the period of FIVE YEARS,. We also rely on the judgement of the Hon'ble Calcutta High Court in the case of Naresh Kumar reported in 2015 (37) STR 451 (Cal). Wherein it is held that an authority has no jurisdiction to issue a show cause notice, which is barred by limitation. Thus having issued the show cause notice, beyond the period of five years, the show cause notice is barred by limitation. 4. On the other hand, Ld.A.R Shri A. Cletus made a number of contentions which can be summarized as under : i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court however did not interfere with the impugned order in regard to Sl.No.2 & 3 and only remanded the matter back on the question of law raised at Sl.No.1 as above. The relevant portion of the order of the High Court is as under : "11. We have perused the memorandum of grounds of appeal before the CESTAT. The appellant had raised the said ground in paragraph 2 ( e) of the grounds of appeal. The CESTAT had considered and rejected the same solely on the ground of suppression. In our opinion, the question of limitation should be considered with reference to the above provisions, which the CESTAT had not gone into, and for that reason, the contention of Mr.K.Jayachandran must be accepted. Though we are not inclined to interfere with the impugned order in regard to the substantial questions of law 2 &3 , we find that the challenge in the appeal on the first substantial question of law must be accepted. Accordingly, the civil miscellaneous appeal is partly allowed and the matter is remitted back to the CESTAT only for consideration on the first substantial question of law. Consequently, M.P.No.1 of 2010 is closed. No costs." 6.3 The limited issue to be addressed by this Bench th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the investigation. It cannot therefore be said that just because officers visited the premises of the appellant on 11.11.93, the department has automatically come to know about the alleged modus operandi as reflected in the SCN dt. 17.5.96. It is but evident that only after analysis and study of the documents seized under Mahazar on the date of visit, and subsequently has the department acquired reasonable belief that the appellant had, as indicated in para 3.0 of the SCN, filed wrong / false declarations; removed medicaments without payment of duty; no Central Excise Gate Passes were issued for removal of the excisable goods and no price lists were filed and no statutory accounts were maintained for the manufacture and clearance of goods. Only after arriving at such apparent findings, and on their basis, has the said SCN dt.17.5.96 inter alia, proposed demand of Central Excise duty of Rs. 78,14,418/- on NIVARAN 90 Cough Syrup, allegedly removed without payment of duty during the period 1.5.1991 to 28.2.1994. 7.4 The Hon'ble High Court of Madras in their remand order dt. 19.10.2011 in C.M.A. No.2579 of 2010 has only remanded the matter to the Tribunal for the limited purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case, the date of inspection by the officers on 11.11.93 will not have any bearing in deciding the period of limitation to issue SCN dt. 17.5.96. 7.8 The appellants have also objected to the issue of supplementary SCN dt. 25.7.96 which, according to them, has substantially changed the SCN originally issued; hence the date of issue of SCN should be taken as the date of issue of the supplementary SCN. On an analysis of this contention, we find that whereas SCN dt. 17.5.96 had only proposed demand of Central Excise duty, the supplementary SCN proposed that on similar grounds contained in the said SCN, "Special Excise Duty of Rs. 6,29,868/-" is also liable to be paid for the period 1.5.91 to 28.2.94 again invoking the extended period of limitation under Section 11A 91) ibid. The Supplementary SCN has not changed the quantum of excise duty, demanded in the earlier SCN dt.17.5.96, but has only sought to propose demand another duty of excise, namely, Special Excise Duty which may have been inadvertently omitted to have been included in the first SCN. In any case, for the very reason that date of inspection 11.11.93 cannot be taken as the date of departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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