JUDGMENT
S.L. Peeran, Member (Judicial)
1. This appeal arises from order-in-original No. 9/90 dated 19.2.90 by which the duty demand has been confirmed including penalty of Rs. 5,000/-.
2. Ld. Consultant Shri K.K. Karunakaran submits that the demands were high on the ground that the appellants had crossed the value of clearance of 10 lakhs and were not eligible to the benefit of SSI exemption notification No. 175/86 C dated 1.3.1986 as they did not posses the SSI certificate or DGTO unit. He submits that the appellant had filed declaration on 25.1.89 which was acknowledgement by Assistant Commissioner on the same date. He has also addressed a letter to the appellants acknowledging the receipt of the declaration filed and assigning number 80/88 – 89 and a copy of the said letter was also addressed to Superintendent of Central Excise, Range-I, Coimbatore. He contends that there is no mention to ingredients to proviso to Section 11A in the show cause notice to extend larger period and therefore the demands are barred by time except for demand for new days, i.e. about 14 days. He contends that the duty has to be computed only for 14 days. On a special query from the Bench as to whether he was in possession of SSI certificate and registered under DGTD Unit, he submits that the proprietress was not being an educated lady had not obtained necessary certificates. However, proviso 4 to the notification applied in her case as during the previous year they were well within the exemption limit and otherwise had not crossed Rs. 15 lakhs as total value of the clearance for the purpose of levying duty. He restricted his arguments on time bar in the matter.
3. Ld. DR submits that the appellants are not eligible for the benefit of the notification as they were not registered under SSI or DGTD. The benefit of the notification will be applicable only if they have obtained the necessary certificate and in the absence of the certificate the demands issued by the show cause notice is confirmable. He submits that there is no infirmity in the order and hence the order is required to be confirmed. He further submits that the date has to be computed from the date of period thereof which the periodical is required to be filed or any other return.
4. On a careful consideration of the submission we notice from para 8 of the impugned order that the appellant had taken a specific plea on time bar and that the demands are barred by time, in view of the fact that they had filed the declaration and that of larger period are not to be invoked. Ld. Addl. Commissioner has not given any finding on the issue of time bar except to say that the benefit of notification is not applicable. We notice from the records that the appellants had filed declaration on 25.1.89 and the Assistant Commissioner had issued a letter on 25.1.89 to the appellants acknowledging the declaration and by allotting a number. In order to invoke larger period the revenue ought to have disclosed the grounds of misdeclaration/suppression, etc., in terms of proviso to Section 11A of the Act. On perusal of the show cause notice, we notice that the ingredients have not been noted and no grounds for extending larger period has been stated. The appellants had filed declaration as noted and therefore larger period cannot be invoked in the present case in the absence of revenue having taken up the plea of suppression/misdeclaration etc. However, duty for short period is liable to be paid for which the revenue has to re-calculate the duty. As regards the penalty of Rs. 5,000/- we notice that the appellants are liable to penalty for not having complied with the various provision of Excise act and therefore penalty of Rs. 5,000/- is justified. The demand for larger period is set aside and the revenue should re-calculate the duty for a short period which covers within 6 months from the date of show cause notice. The impugned order is modified accordingly and the appeal is disposed of in the above terms.
(Order dictated and pronounced in the open court)