2004 (97) ECC 559 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB-A

Hon'ble Justice (Smt.) K.K. Usha, President and
Shri C.N.B. Nair, Member (T)

Garg Casteels P. Ltd. & Ors

Versus

CCE, Rajkot

Appeals No. E/3394-95/98-NB & E/3307-3308/99-NB-A

[Arising out of Order-in-Appeal No. 01/COMMR./1998 dated 15.1.98 and 05/COMMR./99 dated 21.5.99 passed by Commr. of Customs & Central Excise, Rajkot]

Final Order No. 623-626/2004-NB(A), dt. 23.6.04, Certified on 13.7.2004

Demand (C. Excise)

Limitation -- Invocation of extended period -- Similar order passed by the Commissioner dated 19.1.98 in the case of M/s. Shabana Steels Pvt. Ltd. where the allegations against the assessee and its explanations are identical to the present two cases -- Demand against the appellants are not sustainable invoking the larger period of limitation -- Penalties imposed on all the appellants also stand vacated.

Appeals allowed

PRESENT :

Shri M. Chandrasekharan, Sr. Advocate and Shri Sailesh Seth, Advocate for the appellants.

Smt. K.A. Mishra, SDR for the respondent.

Per : Justice K.K. Usha

Appeals No. E/3394 & 3395/98-NB(A) are at the instance of M/s. Garg Casteels Pvt. Ltd. and its Director challenging the order passed by the Commissioner of Customs & Central Excise, Rajkot dated 15.1.98. The Appeals No. E/3307 & 3308/99-A at the instance of M/s. Jaidev Alloys Ltd. and its Director are directed against the order passed by Commissioner of Customs and Central Excise, Rajkot dated 21.5.99.

2. Under the impugned order dated 15.1.98 the Commissioner directed reversal of Modvat credit amounting to Rs. 27,82,213 alleging that the credit was wrongly taken by the appellant. A penalty of Rs. 1,60,000 was imposed on the company and Rs. 50,000 on the Director respectively under Rule 173Q and Rule 209A of the Central Excise Rules. Under Order dated 21.5.99 direction was to reverse modvat credit of Rs. 28,23,796 on the same allegation. A penalty of Rs. 1,50,000 was imposed on the company under Rule 173Q and Rs. 75,000 on the Director respectively under Rule 209A of the Central Excise Rules. The Commissioner confirmed the demand in both the orders invoking proviso to Rule 57-I(1)(i) of the Central Excise Rules.

2. We have considered a similar order passed by the Commissioner dated 19.1.98 in the case of M/s. Shabana Steels Pvt. Ltd. where the allegations against the assessee and its explanations are identical to the present two cases. Apart from taking contentions on merits the appellants herein have also contended that there are no circumstances available to invoke extended period in these cases. In the case of M/s. Garg Casteels Pvt. Ltd. pursuant to an inspection made by the officers in the unit of the appellant on 4.8.93 show cause notice was issued on 19.1.96. The period covered is from December 1992 to March 1993. In the case of Jaidev Alloys Ltd. an inspection was made on 20/21.7.93. Show cause notice was issued on 7.12.95 for a period from September 1992 to March 1993.

3. The contentions on the issue of limitation was considered by the Commissioner under the terms identical to the order dated 19.1.98 passed by him in Shabana Steels Pvt. Ltd.

4. Taking into consideration identical allegations raised by the Revenue against Shabana Steels Pvt. Ltd., the assessee's reply which is also identical as in the present case and where the view taken by the Commissioner on the issue of limitation was identical we held that the demand cannot be sustained on the ground of limitation. We find no reason to take a different view in the facts of these appeals.

5. In the light of the above, we hold that the demand against the appellants are not sustainable invoking the larger period of limitation. Since the demand cannot be sustained, the penalties imposed on all the appellants also stand vacated.

6. In the result, impugned orders are set aside and the appeals stand allowed.

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