Tamil Nadu State Construction Vs. C.C.E. - Court Judgment

Excerpt:
1. the stay application and appeal were heard which have arisen from order in appeal no. 77/2000 (mn-ii) dated 20.7.2000 passed by the commissioner (appeals) rejecting the plea of the appellants regarding marketability and excisability of pre-cast beams etc. which has been classified under sub-heading 6801. the commissioner (appeals) has only given finding on penalty holding that: however, coming to the aspect of penalty, it is seen that the appellants were under the impression that these goods were not excisable and there was no deliberate intention on the part of the appellants to evade payment of duty. therefore, imposition of penalty is not warranted in this case 2. arguing for the appellants, shri t. ramesh, learned counsel for the appellants, submits that although in specific terms the commissioner (appeals) has not given finding on invocation of larger period, in the finding portion of the order, he has recorded finding with regard to imposition of penalty and this finding should be read as a finding on time bar as well. on such a conclusion, the demand would be clearly barred by time as the period involved for durability is 86-87 to 91-92 and the show cause notice was issued on 27.12.92 which is beyond the period of six months. he submits that therefore, the appeal itself is required to be allowed at this stage on time bar aspect in the light of the findings of the commissioner (appeals) on penalty. he supports the plea on time bar in the light of the judgment recorded in the case of cce v. hmm as and in the case of tamil 3. the learned sdr points out that the commissioner (appeals) should have given a detailed finding on time bar. therefore, the order cannot be said to be a speaking order on time bar. however, as the order in original has dealt with this aspect, larger period is required to be invoked in the matter. he further submits that the appellants are not contesting the demand on merits and they should be put to terms.4. the learned counsel submits that the appellants have already deposited 25% of the duty as noted in the order. therefore, he seeks for waiver of pre-deposit of the balance amount and stay of recovery thereof and seeks for disposal of the appeal.5. on consideration of the submissions and on perusal of the entire order, we notice that in paras 2 & 5 of the impugned order, the commissioner (appeals) has noted the submission of the appellants on time bar aspect. however, he has not recorded any finding as to how the longer period of limitation is required to be invoked in this matter and how the demand is required to be confirmed for the period beyond 6 months. he has given specific and categorical finding that penalty is not to be imposed as there was no intention on the part of the appellants to evade payment of duty. therefore, the case was cited by the learned counsel are required to be applied in this case. however we notice that the cce (a) should have given his findings on the aspect of time bar in the light of his own finding on penalty and in the light of the supreme court judgment in the cases cited above. therefore, we grant waiver of pre-deposit of the balance amount stay the recovery of the same and take up the appeal for disposal and remand the matter to the cce (a) for giving-a specific finding on invocation of larger period of limitation in the light of his own observation and also in the light of the supreme court judgment cited supra. he shall take up the appeal for disposal within a period of two months from the date of receipt of this order.

Judgment:
1. The stay application and appeal were heard which have arisen from order in appeal No. 77/2000 (MN-II) dated 20.7.2000 passed by the Commissioner (Appeals) rejecting the plea of the appellants regarding marketability and excisability of pre-cast beams etc. Which has been classified under sub-heading 6801. The Commissioner (Appeals) has only given finding on penalty holding that: However, coming to the aspect of penalty, it is seen that the appellants were under the impression that these goods were not excisable and there was no deliberate intention on the part of the appellants to evade payment of duty. Therefore, imposition of penalty is not warranted in this case 2. Arguing for the appellants, Shri T. Ramesh, learned Counsel for the appellants, submits that although in specific terms the Commissioner (Appeals) has not given finding on invocation of larger period, in the finding portion of the order, he has recorded finding with regard to imposition of penalty and this finding should be read as a finding on time bar as well. On such a conclusion, the demand would be clearly barred by time as the period involved for durability is 86-87 to 91-92 and the show cause notice was issued on 27.12.92 which is beyond the period of six months. He submits that therefore, the appeal itself is required to be allowed at this stage on time bar aspect in the light of the findings of the Commissioner (Appeals) on penalty. He supports the plea on time bar in the light of the judgment recorded in the case of CCE v. HMM as and in the case of Tamil 3. The learned SDR points out that the Commissioner (Appeals) should have given a detailed finding on time bar. Therefore, the order cannot be said to be a speaking order on time bar. However, as the Order in original has dealt with this aspect, larger period is required to be invoked in the matter. He further submits that the appellants are not contesting the demand on merits and they should be put to terms.

4. The learned Counsel submits that the appellants have already deposited 25% of the duty as noted in the order. Therefore, he seeks for waiver of pre-deposit of the balance amount and stay of recovery thereof and seeks for disposal of the appeal.

5. On consideration of the submissions and on perusal of the entire order, we notice that in paras 2 & 5 of the impugned order, the Commissioner (Appeals) has noted the submission of the appellants on time bar aspect. However, he has not recorded any finding as to how the longer period of limitation is required to be invoked in this matter and how the demand is required to be confirmed for the period beyond 6 months. He has given specific and categorical finding that penalty is not to be imposed as there was no intention on the part of the appellants to evade payment of duty. Therefore, the case was cited by the learned Counsel are required to be applied in this case. However we notice that the CCE (A) should have given his findings on the aspect of time bar in the light of his own finding on penalty and in the light of the Supreme Court judgment in the cases cited above. Therefore, we grant waiver of pre-deposit of the balance amount stay the recovery of the same and take up the appeal for disposal and remand the matter to the CCE (A) for giving-a specific finding on invocation of larger period of limitation in the light of his own observation and also in the light of the Supreme Court judgment cited supra. He shall take up the appeal for disposal within a period of two months from the date of receipt of this order.