ORDER
K.C. Mamgain, Member (T)
1. This is an appeal filed by International Fibre Glass Products Private Ltd., against Order-in-Appeal No. 766/2001-CE dated 29.11.2001 passed by the Commissioner of Central Excise (Appeals) Bangalore.
2. Shri B.N. Gururaj learned advocate appeared for the appellants and Shri L. Narasimha Murthy learned, JDR appeared for the Revenue.
3. Shri Gururaj pleaded that in this case the show cause notices issued to the appellants classifying the product under Sub-heading 3925.99 of the Central Excise Tariff Act and consequently demanding differential duty are time barred. He said that the classification issue has already been decided by the Larger Bench of the CEGAT and the decision is against him. Therefore, he is not contesting the classification of the FRP sheets. However, he is contesting only that once the classification declaration were filed by the appellant it was for the department to re-classify the goods and issue the demands within a period of six months. He referred to Rule 173B(3) of the Central Excise rules according to which proper officer duly empowered by the Central Excise under Section 14 of the Act may where he considers it necessary during the course of any enquiry in connection with declaration filed under Sub-rule (1) by an assessee, require any person to produce or deliver any documenter thing relevant to the enquiry and examine any person acquainted with the facts and circumstances of the particulars given in the declaration or other records and according to Rule 173B (4) the proper officer may conduct such further enquiry as he may consider necessary, re-assess the correct amount of duty payable following the provisions of Section HA of the Act and the assessee shall pay the differential if any. He therefore pleaded that the show-cause notices which cover the period from 1.10.98 to 31.3.99 was issued on 30.6.99 the show cause notice covering period from 1.4.99 to 30.9.99 was issued on 13.1.2000 and for the period from 1.10.99 to 17.1.2000, show cause notice was issued on 19.4.2000. Thus, all the show cause notices are issued beyond the period of six months and therefore these are time barred.
4. Shri Narasimha Murthy the learned JDR for the Revenue pleaded that all the show-cause notices have been issued within the time proposing change in the classification and consequent recovery of the duty short-paid under Section HA of Central Excise Act. He stated that in the show-cause notice suppression of fact or extended period has not been applied. The notices have been issued within the period of 6 months from the last date of submission of RT 12 return. The demand for the period from 1.10.98 to 31.3.99 proposing change in the classification and recovery of duty short paid was issued on 30.6.99. He stated that the appellants are small scale industry and they were to file quarterly RT 12 returns. For the quarter from 1.10.98 to 31.12.98 the return was required to be filed by 5.1.1999, the show cause notice was issued on 30.6.99 which is within six months period. Same is the position in the case of show cause notice covering the period from 1.4.99 to 30.9.99. Since the RT 12 was required to be filed by 5th July, the show cause notice was issued by 13.1.2000 and in case of the period from 1.10.99 to 17.1.99, the return was required to be filed by 5.1.2000 and show cause notice was issued on 19.4.2000. He therefore pleaded that the show cause notices are not time barred and the duty has been correctly demanded by classifying the product under Chapter 39 of the Central Excise Tariff Act.
5. We have carefully considered the submissions made by both sides. We find that the FRP sheets manufactured by the appellants are correctly classifiable under Chapter 39 of the Central Excise Tariff Act and not under Chapter 70 of the Central Excise Act as claimed by the appellants. This issue has already been decided by the Larger Bench of the CESTAT in the case of Kemrock Industries and Exports Ltd. v. CCE, Vododam, 2001 (78) ECC 255 (LB) : 2001 (134) ELT 52. Therefore, this issue has not been contested by the appellants. They have only contested that the show cause notices are time barred. We find that the show cause notice is required to be issued within 6 months from the relevant date. Therefore this issue has not been contested by the appellants. They have only contested that the show cause notices are time barred. We find that the show cause notice is required to be issued within 6 months from the relevant date under Section 11A for recovery of the duty short paid, if suppression of facts fraud collusion etc., is not alleged. The relevant date is defined in Section 11A(3)(ii)(a) (A) according to which where duty is short paid and periodical return showing particulars of duty paid on excisable goods removed during the period to which said return relates is to be filed by a manufacturer, the date on which such return is filed or where the return has not been filed, the last date on which such return is filed should be taken as the relevant date. In this case, the relevant date has been taken as 5th day of the month following the quarter to which the return relates. Therefore, considering this situation we find that the show cause notices dated 30.6.99 and dated 19.4.2000 were within the period of 6 months from the relevant date. However, show cause notices dated 13.1.2000 covering the period from 1.4.99 to 30.9.99 was required to be issued before 5.1.2000 but it has been issued on 13.1.2000. Therefore, the demand for the quarter 1.4.99 to 30.6.99 is time barred. We therefore set aside the demand for the quarter from 1.4.99 to 30.6.99 as time barred and rest of the appeal is otherwise rejected. Ordered accordingly.