COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD Vs. MIDCO LTD.

JUDGEMENT

(1.) THE present appeal is filed by the Revenue against Order -in -Appeal passed by Commissioner (Appeals), Central Excise, Ahmedabad (No. 91/2006(Ahd -I), dt. 31 -5 -06. The facts of the case are that M/s. Mercantile and Industrial Development Co., Ahmedabad (M/s. MIDCO) was issued a Show Cause Notice dt. 15 -2 -05 invoking the larger period under Section 114A for recovery of Central Excise duty of Rs. 17,24,407/ - (Rupees Seventeen Lakhs, Twenty Four Thousands, Four Hundred, Seven and paise Eighty One only). This amount became due because of receipt of certain amounts towards certain heads of income like freight, insurance, raw material purchase etc., which allegedly were not accounted for in the invoices. In the Order - in -Original, the adjudicating authority i.e. Jt. Commissioner confirmed the demand and imposed a penalty and ordered levy of interest. In the Order -in -Appeal, it was held by Commissioner (Appeals) that the demand is fully barred by limitation and imposition of penalty, demand of interest was set aside. While filing the appeal against this order. Revenues main contention was that the extended period of 5 years is rightly invocable and there was clear suppression of facts and mis -declaration. M/s. MIDCO, the respondents in this case was all along taking stand that their trial balance sheet showed that there were some adjustments in recording price data of inputs, initially assigned in the trial balance sheet based on an estimate with reference to the price data of the previous year where the final price reflected the actual price (hence the variation). It was also argued that the impugned demand is barred by limitation as they were submitting all relevant documents to the audit party and to the Revenue. There was no disclosure of the material fact as to what is that which had been suppressed. They contended that there was no delay in filing RT -12/ER -1. It was stated by them that the audit report was available on 26 -7 -02 and the Show Cause Notice was issued as late as on 15 -2 -05 for demanding duty pertaining to since 2000 -2001. They have heavily relied upon Honble Supreme Court judgment in the case of Nizam Sugar Factory v. Collr. of Andhra Pradesh in C.A. No. 2747 of 200l [2006 (197) E.L.T. 465 (S.C.)] and also in the case of Collr. C.E. v. Chemphar Drugs & Liniments - 1989 (40) E.L.T. 276 (S.C.).

(2.) WE find that the departments appeal is restricted only to the issue of limitation and the merits of the case were not the subject matter for discussion in the appeal nor any reference made. We, therefore, examine only the question of limitation on the basis of various facts, evidences and the case -laws on this issue. It is an admitted fact that the Show Cause Notice was issued only on 15 -2 -05 demanding dues from 2000 -2001 onwards. It is also an admitted fact that the audit report was made available as early as in July 2002 and the respondents were filing RT -12 or ER -1 without any delay. Revenue has not contradicted the above. Going through the facts of the case, we cannot comprehend as to what has been suppressed from the Revenue by the assessee. If this is not made specific, the entire argument on extended period will remain only as a bald statement.

(3.) IT was contended by the Revenue that ratio of the judgment in the case of of P.B. Pharmaceuticals (P) Ltd. v. CCE, 2003 (153) E.L.T. 14 (S.C.) and in the case of CCE v. Chemphar Drugs and Liniments - 1989 (40) E.L.T. 276 (S.C.), are not applicable to the instant case. However, no cogent reasons were adduced for making this observation.