ASHIRVAD ENTERPRISES PVT LTD Vs. CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL EASTERN ZONAL BENCH KOLKATA

JUDGEMENT

(1.) BY this writ petition, the petitioner has challenged the demand ?cum- show cause notice dated 27.01.1999 (Annexure-4) as issued by the Additional Commissioner of Central Excise, Patna by which notice a demand for alleged short payment of excise duty has been raised alongwith interest and penalty of the equal amount as also to the order passed by the Customs, Excise and Service Tax Appellate Tribunal dated 17.06.2008 (Annexure 10) by which it has upheld the demand in relation to the excise duty while disallowing levying of penalty and other connected and consequential reliefs.

(2.) THE petitioner-Company is a private limited Company and has a small scale industry at Patna, inter alia, manufacturing PVC pipes, filters and what is popularly known as Tara handpumps. THE period in dispute is 01.03.1997 to 18.10.1997. In this regard, it may be noticed that initially two identical notices were issued for the period 01.03.1997 to 18.10.1997 and the other for 05.05.1997 to 18.10.1997 but ultimately the authorities, having realized that there was undisputed overlapping of period, the larger of the two periods is taken to be the period in dispute.

(3.) IT appears that the petitioner-assessee then preferred an appeal before the appellate Tribunal being the Customs Excise and Gold (Control) Appellate Tribunal, Eastern Bench, Kolkata, as it then was, being Appeal No ER 579 of 2001 which was heard and disposed of by order dated 11.02.2002 (Annexure-7). The Tribunal clearly held that the revenue had filed no appeal against the order of the Commissioner (Appeals). The consequential effect was that the petitioner-assessee was liable to get a refund of the amount deposited but noticing that in view of the order of the Commissioner (Appeals), as no order of the adjudicating authority survives, while entitling the assessee to get the refund, it directed that the show cause notice, as originally issued, be decided as per law. Thus effectively, without disturbing the fact that there was no suppression, the matter was remitted to the original adjudicating authority.