M/S. Star Steels vs C.C.E. & S.T. Lucknow

[Arising out of Order-in-Appeal No. 203-CE/LKO/2012 dated 30.03.2012 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Lucknow].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

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 authoritative report or not?

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

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Star Steels .Appellants

Vs.

C.C.E. & S.T. Lucknow .Respondent

Appearance:

Shri Rishikesh, Advocate for the Appellants

Shri G.R. Singh, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 06.02.2015

FINAL ORDER NO. 50358/2015-EX(SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order demanding duty along with interest and imposing penalty.

2. Facts of the case are that on 18.06.2003 the factory premises and office premises of M/s. Jai Jagdamba Malleable Pvt. Ltd. Jhansi was investigated who is a manufacturer of MS Ingots. During the course of investigation it was found that M/s. Jai Jagdamba Malleable Pvt. Ltd. has cleared 86.645 Metric Tonnes of MS Ignots to the appellant. Thereafter, the statement of appellant was recorded and the Managing Director of the appellants company admitted receipt of the said goods without cover of invoices. In these set of circumstances, the duty was demanded from the appellant for procuring the goods without cover of invoices alleging that the appellant has received the goods without duty paying invoice. The matter was adjudicated. Demand along with interest was confirmed and penalty was also imposed. It is pertinent to mention here that investigation took place on 18.06.2003 and show cause notice has been issued to the appellant on 20.06.2008 after period of five years.

3. The ld. Counsel for the appellant submits that it is the admission of M/s. Jai Jagdamba Malleable Pvt. Ltd. that they have cleared goods without cover of Central excise invoices and appellant has also admitted that they have received said good without cover of invoices. As appellant is not the manufacturer of said goods, duty is not demandable from the appellant. He further submits that in this case investigation was conducted on 18.06.2003 and show cause notice has been issued on 20.06.2008 which is beyond a period of five years. Therefore, show cause notice is not sustainable. In these circumstances, he prayed that impugned order is to be set aside.

4. On the other hand Ld. AR reiterated the findings of the impugned order.

5. Heard the parties. Considered the submissions.

6. In this case it is the admission of the manufacturer of the goods that they cleared goods clandestinely without payment of duty and admission is also on the part of the appellant that they have received the goods without any duty paying invoices. As per the provision of Central Excise Act, duty is payable by the manufacturer / producer of the goods. Admittedly appellant is not the manufacturer / producer of the goods. Therefore, demand is not sustainable against the appellant. Moreover, I also find that show cause notice has been issued after a period of five years that also on limitation and appellant is having a good case.

7. In these circumstances I set aside the impugned order and allow the appeal with consequential relief if any.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

2

E/1899/2012-EX(SM)