ORDER
S.L. Peeran, Member (J)
1. This appeal has been filed against the Commissioner (Appeals) order in No. 60/2000, dated 28-4-2000 by which he has confirmed duty demand of Rs. 2,78,768/- besides penalty of Rs. 94,922/- under Section 11AC and further penalty of Rs. 5,000/- under Rule 173Q.
2. The short facts of the case are that the appellants are manufacturers of industrial boilers, structural of iron and steel as also industrial fans of Chapters 73, 84 of the Central Excise Tariff. On the basis of the intelligence, the department verified the stock and accounts of the appellant and noticed that the appellants did not include the cost of materials supplied free of cost by their customers viz. M/s. TLT Engineering India Pvt. Ltd. It was also noticed that they had realised transportation charges for circulating water piping system cleared to M/s. Gujarat Toruent Engineering Corporation Ltd. in excess of the actual transportation cost incurred. Therefore, the show cause notice was issued on 17-9-98 for the said demands. The demand were therefore resisted by the appellant on the ground that it is barred by time and also that they had not suppressed any facts and all the facts pertaining to receipt of raw materials free of cost from their customers had been made known to the department by enclosing a copy of invoices No. 1, dated 30-4-96 and 2, dated 15-5-96 to show that value of free supplies have always been included for the purpose of payment of duty and in the subject case also purchase order was made available to the Superintendent whereupon the Superintendent called for further details by his letter dated 14-1-96. All the facts showed that they had no intention to suppress the facts. They also relied on the Tribunal’s judgment rendered in the case of Business Combines Ltd. v. CCE as reported in 1998 (100) E.L.T. 355 and Shroff Textiles Ltd. v. CCE as reported in 1997 (89) E.L.T. 516 to plead that the charge of suppression would not apply in their case as all the details were available with the department and there was no suppression. Commissioner (Appeals) although agreed to this point that the invoices contain all the details and also that they had produced purchase order dated 19-9-95 to the Superintendent besides triplicate copies of Bill of Entry and other related documents including contract agreement entered into between the customer and themselves. Further the Superintendent’s letter had remained un-replied without disclosing full facts as called for, therefore it related in suppression of facts and hence subsequent investigation and issued show cause notice on 17-9-98. Hence on this ground the Commissioner (Appeals) confirmed the duty by invoking larger period and imposed mandatory penalty under Rule 173Q.
3. In the grounds of appeal the appellant have reiterated their points made before the Commissioner and have also indicated that appellants made available the copies of purchase orders (which contain the particulars of free supplies) to the Range Superintendent during his regular visit. The Range Superintendent on perusal of Purchase Order No. 03/900210/1553/95, dated 19-9-95 wrote to them on 14-1-96 asking for copies of contract agreement. Further they could not furnish the required particulars as they do not have any role or control with the customers and their customers. They contend that since the Revenue had all the material fact for non-payment of duty they could have proceeded to issue show cause notice within the time. They contend that they have already deposited in PLA based on the complete worksheet for the free supplies made. They seek for setting aside the order solely on the ground that there was no suppression with an intend to evade duty as they had disclosed the basic facts on receipt of free items in the invoice itself based on their estimation worksheets and statements submitted on different dates. As the same had been scrutinised by the Range Superintendent there was no question of non-supply of material details. Hence on this ground suppression cannot be alleged.
4. The appellant is not present despite notices. Hence the matter was heard on the basis of the ground made out in the appeal.
5. Ld. DR Shri C. Mani contends that when they filed the supply details and the said details were known only after the show cause notice was issued in 1998. Therefore larger period was invokable.
6. On a careful consideration of the submission I notice that the department has proceeded on the same facts as were available to them on 1996 which were supplied in the invoices and the details had not been called out from the investigation. The appellants have already noted the value of free supply items in the invoices and the same details are relied in the show cause notice issued in 1998 for recovery of the amount. The Range Superintendent after having examined all the documents but remained silent and subsequent investigation to reopen this issue cannot be said to be on the basis of any fresh materials unearthed through investigation. The issue was pertaining to non-inclusion of the value of item supplied free of cost by the suppliers. This point was known to the department and therefore it cannot be said that there is suppression of facts to invoke larger period in the matter. The citation referred to the order applies to the facts of the case. The department has to show that the information which was not supplied to them came to light only on detailed investigation and hence had been withheld with an intention to evade duty and that is not the case made out and the investigation is only with relevance to the facts which were already on record and known to the department. Therefore the plea that the demands are barred by time is required to be accepted and on this ground the impugned order invoking larger period, confirming demands and imposing penalty is set aside and the appeal is allowed with consequential relief, if any.