M/S. Nitco Tiles Ltd vs Commissioner Of Central Excise ...

(Arising out of Order-in- Original No. 16/KKS/2004-2005 dtd. 24/3/2005 passed by the Commissioner Central Excise, Mumbai -II )

For approval and signature:

Honble Mr. P.K. Jain, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

M/s. Nitco Tiles Ltd. : Appellants

VS

Commissioner of Central Excise Mumbai-II : Respondent

Appearance

Shri. T.C. Nair, Advocate for the Appellant Shri. Ashutosh Nath, Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 18/2/2015 Date of decision 18/2/2015

ORDER NO. Per: P.K. Jain

The impugned order is passed in pursuance of this Tribunal order No. CI/3067/WZB/2003 dated 24/12/2003. Vide the said order this Tribunal directed the Commissioner to re-examine the issue on limitation, availability of modvat credit and small scale exception for determination of duty liability on marble tiles and marble articles and consequently interest and penalty.

2. Learned Counsel for the appellants main contention is that they have very good case on limitation as department was aware of the their activity during 1996 itself i.e. when the excise duty was imposed on marble tiles. The departmental officers have visited and there was exchange of correspondence during month of Jul August. Learned Counsel submitted that in view of the said exchange of information, department can not allege suppression of facts or any other ingredients specified in Section 11A. Another submission of Learned Counsel was that during the personal hearing held on 7/2/2005 they have requested the Commissioner to give fortnight time to make further submissions to prove that they are eligible for SSI exemption and also to submit documents relating to availability of modvat credit. Learned Counsel further submits that this has been observed by the Commissioner in para 59 of the impugned order. However there was delay in collecting the documents and thereafter they had submitted letter dated 12/4/2003 in the office of the Commissioner, wherein they have included C.A. Certificate and also other details. Learned counsel submission is that if these details taken into consideration, the duty liability will come down and if benefit of modvat credit is extended duty liability will then become NIL.

3. Learned A.R. reiterates the impugned order and further submits that the Commissioner has waited more than a month for the details, appellant has not requested for extension of time and under the circumstances details given by the them could not be considered.

4. We have considered the rival submissions.

5. We have gone through correspondence exchanged between appellant and department, we find that said exchange were in relation to the stock of imported goods on which no operation was done by the appellant and this has nothing to with the present issue/case. Under the circumstances we are not satisfied with the argument that extended period of limitation can not be invoked. In fact, it is very clear that the electricity power used by the them is more than 10 HP and therefore they were not entitled for exemption. Accordingly, we hold that the there was clear cut suppression and extended period of limitation would be applicable. Appellants another contention is about consideration of their letter dated 10/2/2005 which was submitted only on 12/4/2005 i.e. after passing of the said order. Though the said details were submitted after the permitted time and after passing of the impugned order but in the interest of justice, we consider it necessary that the matter must be re-examined by the Commissioner as appellant may be eligible for SSI exemption and if so, duty liability will come down. We also observe that appellant has only produced C.A. Certificate for availment of modvat credit, this will not be sufficient. Appellant will have to produce record of receipt of the material issued for manufacturing, details of manufactured goods and details of clearance and co-relation with duty liability as also duty paying documents etc. Learned Counsel for the appellant submits that Tribunal can fix the time limit so that they would produce the said documents. Accordingly, we fix time limit of three months from the date of receipt of this order. Within such time appellant to produce the requisite details to the Commissioner, who would thereafter examine the eligibility with reference to SSI Exemption and availability of modvat credit and pass the necessary order including the interest and penalty. Needless to say that before passing the order, principle of natural justice would be observed.

6. The appeal is allowed by way of remand in above terms.

(Operative part pronounced in the Court)

Ramesh Nair Member (Judicial) P.K. Jain Member (Technical)

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