SUNDARAM INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) IN the impugned order, the lower appellate authority has affirmed the original order demanding an amount of Rs. 3,36,920/ - from M/s. Sundaram Industries, Madurai and modified penalty to Rs. 1,10,686/ - He has also affirmed the interest due demanded from the appellant.

(2.) THE facts of the case are that on investigation by the department, it transpired that M/s. Sundaram Industries, Madurai had cleared "moulds" of different varieties during the six years from 1997 to 2003 without payment of the duty due thereon. It was seen that the goods had been removed to the assessee's sister unit in Gurgaon without payment of duty under a set of commercial invoices. The assessee claimed that in respect of six invoices they had paid duty initially when the goods covered by them had been cleared to their Unit 11, which was closed later and the goods had been removed to Unit III at Gurgaon. In the proceedings before the lower authorities, the appellant had not advanced any acceptable explanation for nonpayment of duty in respect of these clearances and also for the much higher value shown in respect of the six clearances said to have been made after their clearance to their Unit II. The appellant all along argued that larger period under Section 11A(1) proviso could not be invoked in the subject case in view of the decision of the apex Court's judgment in the case of Amco Batteries Ltd. v. CCE 2003 (153) ELT 7 (SC). As per the above judgment, extended period could not be invoked as no positive ingredient to substantiate intention for evasion of duty existed in the case considered by the Court, as the entire movement of goods had been properly documented and the movement of goods had been between job worker and the supplier. In the impugned order, the Commissioner has relied on the observation of the larger bench of the apex Court to the effect that there could be a number of eventualities Where extended period of limitation could be invoked by the Department and availability of Modvat credit to an assessee if duty had been paid could be only one of the relevant considerations, the weight attached to which depended upon the facts of each case. The Commissioner found that the ingredients misdeclaration and suppression of facts were established in the subject case while confirming the order of the Assistant Commissioner.

(3.) LD . Counsel for the appellants submits that in the case considered by the larger Bench of the Supreme Court, the clearance of the excisable goods was by the assessee to a job worker whereas in the case of Jay Yushin Limited v. CCE decided by the larger Bench of this Tribunal, the facts were that goods had been cleared by one unit of the assessee to its another unit. He also cited the decision of the Tribunal in the case of Sterlite Industries (India) Ltd. v. CCE 2005 (192) ELT 852 (Tri. Mum) where the Tribunal had made the following observations: