CCE Vs. TRIMURTI METAL INDUSTRIES, VIPIN

JUDGEMENT

(1.) THESE are 5 appeals, filed by Revenue, against common Order -in -Appeals No. 156 -160/2003 dated 29.4.2003 by which the Commissioner (Appeals) has set aside the Adjudication Order demanding duty and imposing Penalty on Appellants No. 1 to 4 and has set aside the Penalty imposed on Appellant No. 5.

(2.) SHRI O.P. Arora, learned SDR, submitted that all the Appellants purchased stainless steel flats on payment of duty which are cut into small pieces and then hot rolled in the form of patta/patties; that the circles were used captively for the manufacture of utensils as well as were being sold in the open market; that in respect of circles used captively for the manufacture of utensils as well as were being sold in the open market; that in respect of circles used captively for the manufacture of utensils the cold rolled patta/patties are chargeable to duty @ 15% ad valorem. He, further, submitted that that the demands are not time barred as held by the Commissioner (Appeals) in respect of first 4 Respondents and the extended period of limitation is available to the department for demanding duty as they had suppressed that fact of production of utensils in their classification list/declaration field by them; that under the Heading "Particulars of other goods manufactured, produced or intended to be removed by the Assessee" they had mentioned 'Nil'; that as such the fact of manufacture of exempted goods namely utensils has been suppressed by them from the department; that the department was accordingly only aware that they were manufacturing stainless steel pattas/patties and was clearing some of it by paying duty @ 15% and some of it was being used captively for the manufacture or circles which were also cleared on payment of duty @ 15%. he also mentioned that the Respondents deliberately paid duty on the circles which were otherwise exempted from payment of duty when captively used ;that thus there was deliberate action on their part to evade payment of duty at pattas/patties stage by paying duty at circle stage; that it has been held by the Larger Bench of the Tribunal in the case of Nizam Sugar Factory vs. CCE, Hyderabad -1999 (14) ELT 459 (Tribunal) that the date of knowledge by the department is not relevant for invoking the proviso to Section 11A(1) of the Central Excise Act. Finally, he submitted that Penalty is imposable on M/s. Jagatsons Industries, Respondents No. 5 against whom demand has been confirmed by the Commissioner (Appeals).

(3.) SHRI J.S. Agarwal, learned Advocate, submitted that the issue involved in the present appeal stands decided by the Appellate Tribunal in the case of Jagatsons Industries Vs. CCE, New Delhi -III -2002(141) ELT 803 (Tribunal); that one of the Respondents M/s. Jagatsons Industries was the party to the matter already decided by the Tribunal.