JUDGMENT
K.K. Usha, J. (President)
1. In this appeal at the instance of the assessee the challenge is against the order passed by the Commissioner of Central Excise, Coimbatore dated 24.4.2002. The appellant is engaged in the manufacture of Pre-stressed cement concrete pipes falling under heading 68.07 of the Schedule to the Central Excise Tariff Act, 1985. They have entered into an agreement with Tamil Nadu Water Supply and Drainage Board (for short, TWAD) for execution of full project including manufacture, supply and laying of concrete pipes, M.S. pipes and fittings, walls and earth work of excavation and refilling etc. It is alleged by the Department that the appellant had not declared the actual place of removal in their declaration filed under Sub-rule (3A) of Rule 173C of the Central Excise Rules, 1944 with an intention to evade payment of excise duty. It was the case of the appellant that the contracts were for supply of pipes, laying and testing at site on turnkey basis and that the contract contained the cost worked out in respect of manufacture and supply of PSC pipes at work site, laying and testing of pipes including the amount incurred and realised for the freight element in the assessable value. The assessee took the stand that the consolidated composite agreement entered into with TWAD Board contained separate rate for each item of work, viz., manufacturing, testing, supply and delivery of pre-stressed concrete pipes, supply and delivery of rubber rings, for jointing, fabrication, manufacture, supply and delivery of pumping mains, mild steel fittings, tail pieces, supply and delivery of cast iron valves etc. Show cause notice dated 30.10.2001 was issued to the appellant demanding differential duty of Rs. 40,32,550 under proviso to Section 11A of the Act for the period from 1.10.96 to 9.9.2001. There was also a proposal for imposition of penalty under Section 11AC of the Act and Rules 25 and 27 of the Central Excise Rules, 2001 and erstwhile Rules 173 and 210 of the Central Excise Rules, 1944.
2. Apart from the contention on merit that the sale in respect of pre-stressed concrete pipes took place at the factory gate and therefore, freight is not to be added for arriving at the assessable value, the appellant contended that the demand was barred by limitation. The Commissioner confirmed the demand by invoking extended period of limitation on the ground that the appellant had mis-declared the place of removal in the declaration filed under Rule 173C(3A).
3. Before us the Learned Counsel for the appellant made detailed submissions on merits relying on the decisions of this Tribunal as well as Supreme Court. He also submitted that the Commissioner has committed an error in rejecting the contention on the question of limitation.
4. After hearing both sides we find that the appellant has got a, good case on the ground of limitation. We therefore proceed to dispose of this appeal without going into the contentions on merit.
5. It is to be noted that before the issue of show cause notice dated 30.10.2001 relevant for the present proceedings for the period 1.10.96 to 9.9.2001, the Department had issued another show cause notice on 2.1.2001 for the period 1.10.2000 to 30.9.2001 on the very same allegation. The above show cause notice is pending adjudication before the Assistant Commissioner of Central Excise, Coimbatore, Second Division. The present show cause notice dated 30.10.2001 will not be sustainable for the period from 1.10.96 to 1.10.2000 unless the Revenue takes recourse to the larger period of limitation under Section 11A(1). After hearing both sides and after going through the records of the case we are inclined to take the view that there was no suppression of fact by the appellant with intent to evade duty. The appellant had filed with the departmental authority each of the works contract entered into with the Board along with the split up of the total price giving therein the ex-factory price, excise duty, freight, sales tax. The price split up filed by the appellant showed that no duty was being paid on freight amount. There is no merit in the contention raised by the Revenue that the appellant had mis-declared the place of removal in the declaration filed under Rule 173C(3A). The assessee had during the relevant period submitted various documents to excise department wherein all the relevant facts and circumstances have been made mention of. The monthly RT 12 Returns alongwith copies of excise invoice show that movement of the goods has been recorded. It is also a fact that the contract had been examined by the audit team as well as the Commissionerate. When all the relevant facts are made available by the appellant it is the duty of the Department to examine in detail the entire facts and records and then come to a decision. We are therefore of the view that the Department has not proved that there was suppression of fact on the part of the assessee with intention to evade duty. Therefore, the demand for the period 1.10.96 to 30.9.2000 is barred by limitation. We make it clear that the proceedings pending before the Assistant Commissioner, Central Excise Division-II in respect of show cause notice dated 2.1.2001 for the period 1.10.2000 to 30.9.2001 will be finalised on merit. The impugned order is set aside to the extent it applies for the period 1.10.96 to 30.9.2000.
6. The appeal stands partly allowed as above.