TULSYAN NEC LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) IN the impugned order, ld. Commissioner (Appeals) demanded differential duty of Rs. 7,37,222/ - from the appellants in respect of their final products cleared from factory during March to July 1997 and also asked them to pay an amount of Rs. 15,77,703/ - equivalent to the MODVAT credit taken on inputs in stock as on 1.8.1997 and inputs contained in finished goods present in stock as on that date. The first demand is on the ground that the cost of transportation of the goods from factory to consignment agent had also to be included in the assessable value of the goods. The second demand is on the ground that the assessee was not entitled to utilize CENVAT credit of the duty paid on inputs present in stock as on 1.8.07 and inputs contained in finished goods present in stock as on that date inasmuch as, from that date, they were to discharge duty liability on their final products under the compounded levy scheme under Section 3A of the Central Excise Act. Their final products were Hot Re -rolled products of Non -alloy Steel (Chapter 72 of the first Schedule to the Central Excise Tariff Act) which were notified under Section 3A ibid for the purpose of compounded levy of duty with effect from 1.8.97. In the present appeal, the appellants have challenged the demand of duty of Rs. 7,37,222/ - on the ground of limitation. Their challenge against the rest of the demand is on the ground that there was no provision of law, during the material period, for recovery of MODVAT credit taken and already utilized (for payment of duty on final products) in respect of the inputs in stock, or contained in finished goods in stock, as on 1.8.1997. Ld. Counsel has reiterated these grounds of the appeal. Ld. SDR has argued in defence of the impugned order.

(2.) LD . Counsel has also submitted that, insofar as the demand for reversal of MODVAT credit is concerned, the issue is already covered by the decision of this Tribunal. He has cited the following decisions in this connection:

(3.) WE are not impressed with this case of the Revenue inasmuch as they did not allege, in the Show -Cause Notice, that party had suppressed or misstated any fact with intent to evade payment of duty. Suppression is certainly one of the ingredients of Section 11A of the Central Excise Act for invoking the larger period of limitation, but it has to be specifically pleaded and clearly established against the assessee. This condition has not been satisfied in the present case.