GODAWARI STEEL PRIVATE LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD Shri Barlinge, the learned Counsel for the petitioner-company which is an assessee under the Central Excise Act of 1944. It is engaged in the manufacture of M. S. Round Bars/cid/flats falling under Chapter 72 of the Central Excise Tariff Act, 1985. A show cause notice was issued on 1st of March, 1998 alleging that while the assessee had accounted for a quantity of 1168. 465 MT and 554. 540 MT 1995-96 during the year 1994-95 and 1995-96 respectively of the excisable goods and paid duty accordingly. On verification of the record it was noticed that, the assessee had manufactured 2445. 230 MT and 1367. 366 MT respectively during the same period, thus, suppressed the production of the excisable goods, with an intention to evade payment of Central Excise Duty due for the said period. This show cause notice was issued by invoking the proviso to Section 11a (1) of the petitioner submitted its reply and by order-in-original dated 31st December, 1998 the claim for an amount of Rs. 39,17,983/- was confirmed. The said order was challenged in an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal - West Regional Bench at Mumbai. By judgment dated 17th of August, 2001 the appeal was partly allowed inasmuch as while confirming the recovery of deficit excise duty payment the Tribunal held that imposition of penalty by invoking section the said provision was incorporated in the statute book only on 28th September, 1996. Hence, this petition by the assessee.

(2.) SHRI Barlinge raised mainly two points in support of his challenge to the order passed by the Tribunal (i) that the show cause notice was belated and proviso to Sub-section (1) of Section 11a of the Act was not applicable and (ii) the production capacity of 1051 MT was fixed by the Commissioner himself and, therefore, the allegations that the petitioner had suppressed the actual production capacity while submitting the returns were baseless.

(3.) BOTH these points have been considered at length by the Commissioner as well as the Tribunal and concurrent findings have been recorded on both the issues. We have gone through the proviso to Sub-section (1) of Section 11a of the Act and we are satisfied that the show cause notice dated 1st March, 1998 was within the period of limitation inasmuch as the allegations pertain to the period of 1994-95 and 1995-96 (up to October, 1995 ). The Revenue has an outer limit of five years and the subject show cause notice was certainly within this period.