M/S Indian Special Casting Pvt. … vs Commissioner Of Central Excise on 4 February, 2009

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH


                                       CEA No.85 of 2008 (O&M)
                                       Decided on : 04.02.2009


M/s Indian Special Casting Pvt. Ltd.

                                                                 ....Appellant

                                VERSUS

Commissioner of Central Excise, Ludhiana
                                                               ....Respondent

CORAM:- HON’BLE MR. JUSTICE M. M. KUMAR
HON’BLE MR. JUSTICE H. S. BHALLA

Present:- Mr. Jagmohan Bansal, Advocate
for the appellant.

Mr. Ram Chander, Advocate
for the respondent.

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporters or not? Yes

3. Whether the judgment should be reported in the Digest?

M. M. KUMAR J.

The instant appeal filed under Section 35G the Central Excise

Act, 1944 (for brevity ‘the Act’) is directed against order dated 17.04.2008,

passed by the Custom, Excise & Service Tax Appellate Tribunal, New Delhi

(for brevity ‘the Tribunal’), holding that the inputs were never transported on

which Modvat credits have been availed by the appellant-dealer. The

Tribunal has recorded a categorical finding that as many as 133 cases of

transportation were found to be fake after examining the owners of the

concerned vehicles. The categorical findings are that the goods were
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received by the appellant and, therefore, availment of Modvat credit has

been held to be illegal and fradulant.

We have heard learned counsel at a considerable length and

find that there is no merit in the instant appeal. The argument raised by the

learned counsel for the appellant that period of one year from the date of

knowledge would be applicable, has failed to impress us. According to the

learned counsel, the Revenue came to know about the facts on 07.02.2001

and within one year, show cause notice should have been issued as per the

provisions of Section 11A of the Act which was issued on 23.3.2005. In

support of the aforesaid submission, he has placed reliance on a judgment of

Hon’ble the Supreme Court rendered in the case of Nizam Sugar Factory v.

Collector of Central Excise, A.P., 2006 (197) E.L.T., 465 (S.C.).

However, we find that the aforesaid judgment is not applicable because in

that case, after the facts came to the knowledge of the Revenue, a show

cause notice was issued and on the basis of the same facts and evidence

another show cause notice was issued claiming that the period of limitation

of 5 years would be available. Accordingly, Revenue was not permitted to

avail the benefit of limitation as per proviso to sub-section(1) of Section

11A of the Act. However, in the present case, the first show cause notice

was issued on 23.3.2005 as has been conceded by the counsel for the

appellant. Therefore, there is no merit in the arguments raised.

Learned counsel has also argued that the supplier of material

M/s H.B.R. Steel Corporation was also proceeded against and proceedings

have been dropped by the Tribunal. However, we do not find any

merit in the submissions because there are categorical findings against the
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appellant by the Tribunal whereas no such findings were recorded in the

case of the supplier. The appeal is wholly misconceived.

Accordingly, the appeal fails and the same is dismissed.

                                                        (M. M. Kumar)
                                                            Judge


                                                           (H. S. Bhalla)
February 04, 2009                                             Judge
ashish