DIMEX GRANITE (P) LTD. Vs. CCE

JUDGEMENT

(1.) THE relevant facts of the case, in brief, are that the appellant are 100% Export Oriented Unit, engaged in the manufacture of Mirror Polished Granite Tiles classifiable under sub -heading No. 6807.90 of Central Excise Tariff Act. On 3.4.98 the Central Excise officers visited the factory of the appellant, recovered some gate registers/private records. On scrutiny of the said records, it appears that a total quantity of 1451.39 sq. ft, of Granite Tiles were cleared clandestinely without payment of appropriate Central Excise duty and Without having prior permission from the competent authority of NEPZ regarding clearance of the goods into domestic Tariff Area. The appellant admitted maintenance and authenticity of gate registers/other records pertaining to the appellant and also admitted that the entries made therein are related to clearance of the goods from their factory premises. Shri Rajesh Kumar Bansal, Director of the appellant, in his statement dated 16.6.98 admitted that they had cleared Granite Tiles as sample or free of cost to some persons without payment of Central Excise duty and without having prior permission of the competent authority of NEPZ. The adjudicating authority confirmed the demand of duty of Rs. 1,55,637/ - and imposed penalty of the equal amount along with interest. The Commissioner (Appeals) upheld the adjudication order.

(2.) THE ld. Advocate on behalf of the appellant submits that the Central Excise officers visited the appellant's factory on 3.4.98 and it was known to them of the alleged irregularity and, therefore, the show -cause notice dated 3.7.99 is barred by limitation. In this connection, he relied upon on the following case laws:

(3.) THE ld. DR reiterated the findings of the Commissioner (Appeals). He submits that the Director of the appellant categorically admitted in his statement clearance of the goods without payment of duty and to pay duty. But they have not paid duty before issuance of Show -Cause notice. He submits that this Tribunal vide order dated 23.08.2001 directed to deposit the duty amount of Rs. 1,55,637/ -compliance to the Commissioner (Appeals) as he had not disposed of the appeal on merit. Even that they did not deposit the duty and moved an application for modification of the stay order dated 25.8.2000 of the Tribunal. Then, this Tribunal by order dated 19.11.2001 dismissed the application and directed to deposit the entire amount and to report compliance before the Commissioner (Appeals) and thereafter the appellant deposited they duty. He indicates the conduct of the appellant that while admitting the duty liability they failed to deposit duty. He further submits that the larger Bench of this Tribunal in the case of Nizam Sugar Factory v. Collector of Central Excise, Hyderabad held that limitation of five years available even when department have knowledge about suppression, fraud etc.