Disposed

M/S Annapurna Plastic Products Pvt. Ltd. v. Commissioner of Central Excise

Allahabad HC27 Mar 2019CEXA/87/2018

Case brief

AI extract

What is this about?

The Supreme Court allowed the appeal in a Central Excise matter, setting aside the Tribunal's order because it failed to address the appellant's specific plea regarding the invocation of the extended period of limitation under Section 11A of the Central Excise Act, 1944.

What did the court decide?

The impugned order is set aside, and the matter is remanded to the CESTAT for reconsideration. The appeal is disposed off.

M/S Annapurna Plastic Products Pvt. Ltd. Vs… — Banking and Recovery | Allahabad HC (2019)

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Court No. - 35

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Case :- CENTRAL EXCISE APPEAL No. - 87 of 2018

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Appellant :- M/S Annapurna Plastic Products Pvt. Ltd.

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Respondent :- Commissioner Of Central Excise Counsel for Appellant :- Nishant Mishra Counsel for Respondent :- Ramesh Chandra Shukla

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Hon'ble Bharati Sapru,J. Hon'ble Piyush Agrawal,J.

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(Delivered by Hon'ble Piyush Agrawal, J.)

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The present appeal has been filed under Section 35G of the Central Excise Act, 1944 against the Final Order No. A/71808/2017/2017-SM [BR] dated 13.11.2017 pronounced on 1.12.2017 by Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as "CESTAT"), Allahabad in Appeal No. E/1185/2011-EX[SM].

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The aforesaid appeal was admitted on 7.5.2018 having following questions of law:-

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"A. Whether in absence of any finding in order-in-original regarding invocation of extended period of limitation of 'five years', demand of duty beyond the normal period of limitation of 'five years', demand of duty beyond the normal period of limitation of 'one year' can be sustained?

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B. Whether electricity consumption during the period 2009-10, can be made the basis for presuming clandestine manufacture in preceding years, in absence of corroborative evidence on record?

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C. Whether the findings recorded by Tribunal regarding excess electricity consumption, excess installed capacity and excess payment made to labour contractor, are based on no evidence, suffers from perversity and non-application of mind? "

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Heard learned counsel for the parties.

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The facts of the case are that the appellant is engaged in the business of manufacture of Poly Propylene Glasses falling under Chapter heading 39 of the first Schedule to Central Excise Tariff Act, 1985, for which Appellant was duly registered under the provisions of Central Excise Act, 1944.

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On 29.4.2009, the team of officers of AntiEvasion, Central Excise department searched the manufacturing premises of appellant. During the course of search, records like diaries, labour payment register, electricity bills etc., were seized. A panchnama was also prepared. During the search, the petitioner was found manufacturing excisable finished goods since November, 2005 and has crossed the Small Scale Industrial ( in short "SSI") Exemption limit, on July, 2006 still were availing SSI Exemption and evading a huge amount of Central Excise Duty.

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The appellant could not produce Form-IV and RG-I registers or any other Central Excise records in respect of raw material/inputs and finished goods which shows that appellant was evading in Central Excise Duty. A year wise chart for duty calculation was prepared on the basis of units of electricity consumption from November, 2005 to December, 2009 from the private records resumed on 29.04.2009, i.e. the register maintained by the party for packing of different sizes of glasses, the labours packed 11094 glass boxes in November 2008, 13435 in December, 2008, 15913 in January, 2009, 16282 in February, 2009 and 13870 glass boxes in March 2009. The electricity consumed (in unit) during this period

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was 118932 in November 2008, 101904 in December, 2008, 105042 in January 2009, 129984 in February, 2009 and 95370 in March, 2009. This clearly shows that a total 551232 boxes containing 5000 glasses each (352962500 no. of glasses) were manufactured from November 08 to March 2009 as against 551232 units of electricity consumed during the same period. It works out to 640.32 glasses manufactured/ unit of electricity consumed.

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It was further found that sale figure of the party was 3.71 crore for the year 2006-07, Rs. 5.85 crore in 2007-08 and Rs. 7.29 crore in 2008-09 which is higher than the threshold limit of Rs. One crore in 2006-07 itself.

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On 23.4.2010 and 26.4.2010 show cause notices were issued and in response to show cause notices, reply was submitted. By order dated 21st January, 2011 the demand was confirmed and duty of Rs. 30,14,062/- was imposed and equal amount of penalty was also imposed.

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Feeling aggrieved by the aforesaid order the appellant filed an appeal before CESTAT. In the ground of appeal at serial No. 20 the appellant has taken the specific plea that demand is fully time barred and no finding has been recorded by the adjudicating authority.

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The Tribunal by means of impugned order has dismissed the appeal of the appellant and, hence, the present appeal.

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The counsel appearing on behalf of the appellant has pressed only question No. 1 and argued that the specific point was raised in the grounds of appeal and argued before the Tribunal that the

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demand raised against the appellant is fully time barred and neither finding has been recorded by the adjudicating authority nor in the impugned order.

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He has further argued that the matter should be remanded back to the Tribunal for reconsideration.

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The counsel appearing on behalf of the respondent could not dispute the said fact.

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This Court has perused the record of the case and found that in memo of appeal filed before the Tribunal, specific ground at Serial No. 20 has been taken copy of which is Annexure No. 5 to the present appeal which is quoted below:-

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"20. That the appellants pleaded before the lower authority that the demand is fully time barred however no finding has been given on this aspect.

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It was submitted before the lower authority that Section 11A of the Central Excise Act, 1944 empowers the officer of Central Excise and Service Tax to issue show cause notice for recovery of duty within one year from the relevant date in the normal circumstances, but where such duty has not been levied or paid or short levied or short paid or erroneously refunded by reason of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any provisions of the Act or rules made thereunder with intent to evade payment of duty, then in that event, show cause notice can be issued within the period of five years from the relevant date. This is settled law that if the facts are known to the department, extended period cannot be invoked.

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20.1............................................................................................... ................Therefore, extended period envisaged under proviso to 11A(1) of the Central Excise Act, 1944 cannot be pushed against them. In this context, the notices refer to and rely upon the judgment of Hon'ble Supreme Court in the case of Larsen & Toubro Vs. CCE Pune II reported in 2007 (211) ELT siz (SC)...............................................................................................

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The above ground goes to show that the appellant has specifically raised the issue of limitation which has neither been considered by the Tribunal nor finding has been given.

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In view of the said fact the order impugned is set aside and matter is remanded back to the Tribunal for reconsideration.

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In view of the observation made as above, the appeal is, accordingly, disposed off .

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Order Date :- 27.3.2019 SY

M/S Annapurna Plastic Products Pvt. Ltd. v. Commissioner of Central Excise

Case brief

What is this about?

What did the court decide?

M/S Annapurna Plastic Products Pvt. Ltd. v. Commissioner of Central Excise

Case brief

What is this about?

What did the court decide?

What the court decided

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