CCE JAIPUR Vs. UNITED MARBLES SAKHAWAT ALI

JUDGEMENT

(1.) The Revenue has filed this appeal being aggrieved by the Order passed by the Commissioner (Appeal) setting aside the Adjudication Order passed by the Dy. Commissioner under which duty of Central Excise was confirmed and penalty was imposed on the Respondents.

(2.) Shri A.K. Jain, Ld. Dr, submitted that the Central Excise Officers visited the factory premises of M/s United Marbles Pvt. Ltd, on 13 -6 -97; that on physical verification only 20.9603 Cu mtrs shown in RG -I Register; that Shri Sakhawat Ali, authorised signatory, admitted shortage of marbles slabs and removal thereof without payment of duty; that the Respondents deposited the duty amount immediately before the issue of show cause notice. A show cause notice dt. 18 -8 -98 was issued only for imposition of penalty and appropriation of duty already deposited in Govt. account; that the duty once deposited can be refunded only under Section 11 B of the Central Excise Act; that it is a case of clandestine removal of excisable goods and all cases of clandestine removal are suppression of facts from the Department and as such demand could be raised within 5 years; that Commissioner (Appeals) was not justified in setting aside the Adjudication order accepting the submissions of the Respondents that the proviso to Section 11A was not invoked and for not specifing the Commissioner or omissions stated in the proviso to Section 11 A of the Central Excise Act.

(3.) On the other hand, Shri Bipin Garg, Ld. Advocate, submited that the Department had neither invoked proviso to Section 11 A(1) of the Act while rasing the demand in the show -cause -notice nor it put the Respondents to Notice specifically as to which of the various commissions or ommissions stated in the said proviso had been committeed by the Respondents and therefore the extended period cannot be invoked. The Ld. Advocate placed the reliance on the decision of the Supreme Court in the case of CCE Vs. HMM Ltd. 1995(76) ELT 497 (SC) wherein it was held that demand for extended period is not invokable unless show cause notice puts assessee to notice specifically as to which of the commissions/ommissions of the proviso had been committeed. Reliance has been also placed on the decision in the case of Raj Bahadur Narain Singh Sugar Mills Ltd. Vs. U.O.I. 1996(88) ELT 24(SC). The Ld. Advocate also submitted that the extended period of limitation under proviso 2 Section 11 A(1) of the Act cannot be invoked by implications; that penalty is not imposable unless Department is able to sustain its demand in show cause notice; that since the demand is hit by time limit no penalty is imposable on them.