CCE Vs. OOTY BAKERS AND CONFECTIONERS (P)

JUDGEMENT

(1.) IN adjudication of a show -cause notice dated 29.12.1998 for the period September 1997 to May 1998, the original authority had confirmed against the assessee demand of duty of Rs. 64,110/ - by invoking the extended period of limitation under Section 11A of the Central Excise Act and had imposed on them equal amount of penalty under Section 11AC of the Act. The demand of duty was consequential to denial of SSI benefit on the ground that such benefit was not admissible to the goods in question which had been cleared under another person's brandname. The extended period of limitation was invoked on the ground that the use of another person's brandname had been wilfully suppressed before the department with intent to evade payment of duty. Against the order of adjudication, the assessee preferred appeal to the Commissioner (Appeals) and the latter by Order -in -Appeal No. 67/2000 dated 11.10.2000 sustained the demand of duty but vacated the penalty. Against the appellate order sustaining the demand of duty, the assessee preferred appeal to this Tribunal [Appeal No. E/190/2001], while, against the same order vacating the penalty, the department also filed appeal [E/117/2001]. The assessee's appeal was disposed of as per Final Order No. 1302/2001 dated 8.8.2001 of this Bench remanding the case to the lower appellate authority for fresh decision on the limitation issue. The Revenue's appeal, E/117/2001, against Order -in -Appeal No. 67/2000 ibid is presently before us.

(2.) PURSUANT to the above remand order of this Bench, the Commissioner (Appeals) by Order -in -Appeal No. 322/2003 dated 9.12.2003 sustained the demand of duty for the extended period also after finding that there was deliberate suppression of facts on the part of the assessee with intent to evade payment of duty. The assessee's appeal before us [E/361/2004] is against Order -in -Appeal No. 322/2003 ibid.

(3.) AFTER examining the records, we note that, on merits, the assessee has been found to be ineligible for SSI benefit in respect of the branded goods for the period of dispute. In other words, the duty liability of the assessee stands settled against them. After the remand order dated 8.8.2001 of this Bench, the only surviving issue is whether the extended period of limitation under Section 11A of the Act was liable to be invoked in this case. On that issue the lower appellate authority has returned a decision against the assessee, against which the main objection raised in the present appeal of the assessee is that the lower appellate authority acted beyond the scope of the remand order. According to the appellants, the Commissioner (Appeals) should have recorded a finding that duty was demandable only for the normal period of six months. In other words, according to the assessee, this Tribunal had already arrived at such a finding in its remand order and the Commissioner (Appeals) was required to reiterate that finding. This submission of the appellants, reiterated by their counsel, cannot be accepted. The remand ordered by this Bench in Final Order dated 8.8.2001 was for de novo decision on the limitation issue and, accordingly, the lower appellate authority has rendered decision on the said issue, which is very much within the scope of the remand order.