M/S.Kanknarrah Company Ltd vs Commissioner Of Central Excise, ...
- CitationAppeal No.EA-70648/13
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning in this order rests on the following points. Where the eligibility of an exemption notification has been decided against the assessee in a related case, and the Tribunal has held that the extended period of limitation cannot be invoked and penalty cannot be imposed because the issue turns on the interpretation of a notification and the relevant facts were within the department's knowledge, the demand in the present appeal must be confined to the normal period of limitation and penalty must be set aside. Where the assessee has challenged the computation of the demand, including on the ground that it has been carried into a period after the exemption was restored, the quantum of duty and interest must be recomputed by the adjudicating authority for the normal period, taking into account the computation errors raised, and the matter is remanded for that purpose.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Original No.24/Commissionier/CE/KOL-III/2012-13 dated 25.03.2013 passed by the Commissioner of Central Excise, Kolkata-III.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental Authorities?
M/s.Kanknarrah Company Ltd. Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Kol-III Respondent (s)
Appearance:
NONE for the Appellant (s)
Shri S.Nath, AC(AR) for the Respondent (s)
CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Shri H.K.Thakur, Member(Technical)
Date of Hearing:- 28.09.2015 Date of Pronouncement :- 28.09.2015
ORDER NO.FO/A/75529/2015
Per Dr. D.M. Misra.
1. None present for the applicant. The applicant has requested vide letter dated 28.09.2015 to decide the issue on merit in the light of the Tribunals order dated 30.06.2015.
2. The ld.AR for the Revenue submits that the issue involved in the present case relate to eligibility of exemption Notification No. 12/2011 CE dt.01.3.2011 & 30/11 CE dt. 24.03.2011 to branded jute bags, and the issue has been decided by this Tribunal in the case of The Hoogly Infrastructures Ltd. & others Vs. CCE, Kolkata vide Order No.FO/A/75321-75354/2015 dated 30.06.2015.
3. We find that this Tribunal while decided the issue of elgibility of the said exemption Notification against the Appellants-assessees but on limitation and penalty observed at para 41 of the Order as below:
41. We find that in the impugned order the ld. Commissioner has imposed penalty and in few cases confirmed demand, wherein extended period of limitation is invoked. We do not find merit in the said conclusion of the ld. adjudicating authority, inasmuch as, the present issue relates to interpretation of the concept of brand name referred to under the relevant Notification No.12/11-CE dated 01.03.2011 and 30/11-CE dated 24.3.2011 and the brand name has been printed/affixed pursuant to the direction of jute commissioner; besides all facts were within the knowledge of the department as the appellant have been engaged in manufacturing and clearing such branded jute bags which are exempted before 01.03.2011 and the exemption was restored w.e.f. 01.3.2013 to such manufacturers. Therefore, we set aside the impugned Order to the extent of imposition of penalty and also confirmation of the demands, wherever extended period of limitation has been invoked. In such cases, the duty however, should be computed for the normal period of limitation. Besides, we also find that the computation of demand has been challenged by the appellant; the ld. sr.Adv. Dr.Samir Chakraborty has submitted that their grievance on the excessive demand has not been addressed and if the computation of demand is properly carried out, then it would be drastically reduced. In support of his submission he has submitted a chart to show the errors. Shri S.Bagaria, Ld. Adv. argued that even after issuance of exemption Notification 11/2013CE dt. 01.3.2103, the period thereafter has been included in computation. Therefore, we are of the opinion that the computation of the demand in M/s Hoogly Industries case and in all other cases, wherever such dispute has been raised, need to be addressed by the adjudicating authority. In the result, the appeals are partly allowed to the extent of imposition of penalty and demand for extended period, and all the appeals are remanded to the adjudicating for re-computation of demand & interest for normal period taking into consideration the grievance of the Appellant on the computation errors. Consequently, the impugned Orders are modified and the Appeals are allowed partly to the above extent.
4. To ascertain the position, the present appeal is also remanded to the adjudicating authority. Appeal and stay petition disposed off.
(Pronounced and dictated in the open court.)
SD/ SD/
(H.K.THAKUR) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm
4 Appeal No.EA-70648/13
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