GAJENDRA ENTERPRISES Vs. COMMISSIONER OF C. EX., DAMAN

JUDGEMENT

(1.) AFTER hearing both sides, we find that the duty of Rs. 4,82,432/ - stands confirmed against the appellant in respect of clearances of Thermo Plasto Elastomere (TPE) during the period 1996 -97 upto 11 -9 -99, by following the concessional rate of duty in terms of Notification No. 1/93 -C.E. and No. 9/99 -C.E. It is on record that the said concessional rate of duty was availed by the appellant after filing a declaration in terms of Rule 173B. In fact, the show cause notice issued on 13 -10 -99 refers to the said declaration and the Revenues case is based upon the scrutiny of the said declaration filed during the relevant financial year. As such, the appellants strongly plead that the show cause notice issued, on 13 -10 -99 was clearly barred by limitation except for 6 months period prior to issuance of the said notice.

(2.) THE Additional Commissioner, while dealing with the above plea of the appellant, has observed that they have cleared the goods without payment of duty under exemption notification for which they were not entitled and as such, suppressed these material facts from the department by willful misdeclaration and with an intent to evade the payment of Central Excise duty. The Commissioner (Appeal), while dealing with the aspect of limitation, has observed as under : As regards, the appellants plea that they have filed declaration under Rule 173B, I find that the appellants had mis -declared/suppressed the facts that their products TPE compounds were neither rubber solution nor vulcanising as admitted by the Manager/Partner of the unit and therefore the extended period is rightly invoked in this case. In such a situation, the penalty imposed on them invoking the provisions contained in Rule 173Q call for no interference.

(3.) AS such, it is seen that the Revenue is not disputing the facts of filing of declaration by the appellant in respect of the concerned product i.e. TPE. However, the extended period stands invoked by them on the ground that the appellant wrongly claimed the benefit of notification. Learned advocate submits that regular returns with details of the invoices were filed with the department. As such, every fact was in the knowledge of the Revenue.