COMMISSIONER OF CENTRAL EXCISE Vs. TI METAL SECTIONS

JUDGEMENT

(1.) This appeal is directed by Revenue against Order -in -Appeal No. 327/97(M), dated 21 -11 -97 by which the learned Commissioner has held that the amended provisions which came into effect from 1 -3 -97 cannot be made applicable retrospectively as amendment to Rule 57E came only on 1 -3 -97 and this amendment which came from 1 -3 -97 cannot be applied to payments made earlier retrospectively. He has held that it was only a classification dispute and he held that assessees were entitled to issue of Certificate 'A' under Rule 57E of the Central Excise Rules, 1944. He, therefore, directed the Asstt. Commissioner to issue the certificate immediately.

(2.) Aggrieved by this order of the learned Commissioner (Appeals), the Revenue has come in appeal on the ground that as per Rule 57E, the provision of Rule 57E shall not apply in cases where the additional amount of duty became recoverable from the manufacturer or importer of the inputs on account of any short -levy or non -levy by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any provisions of the Act or Rules made thereunder with intent to evade duty.

(3.) Revenue further contended that this provision was in existence at the time of issue of certificate and hence was applicable to the present issue. They also submitted that the amendment was only in the nature of clarification and, therefore, would cover the date of payment of duty retrospectively. Revenue, further, contended that even under Rule 57G, the six months period is only from the date of issue of certificate under Rule 57E and not from the date of payment and the Commissioner (Appeals) failed to give his finding regarding suppression of facts, fraud, etc., but simply agreed with the contention of the assessee that it is a classification dispute, whereas the Assistant Commissioner has categorically stated that there is fraud, suppression of facts, etc. Revenue, therefore, prays that the impugned order of the Commissioner of Central Excise (Appeals) may be set aside and the Order -in -Original in C. No. IV/16/114/93 -Adj., dated 19 -5 -97 of the AC be confirmed.