ORDER
Gowri Shankar, Member (T)
1. The appellant received between February, 1993 and January, 1994 consignment of steel sheets and took credit of the duty which was deemed to have been paid on these goods by order dated 12-7-92 of the Ministry of Finance. It cleared during this period these goods to its sister concern at Gorva, after debiting the credit that it took. Notice issued to it dated 19-4-96 alleged short debit by the assessee of the credit on these goods on the basis that in terms of Rule 57F(1)(2), the goods ought to have been cleared as if they have been manufactured in the factory, and the difference between the duty so payable on them and what was debited was demanded. Adjudicating on the notice, the Commissioner has confirmed the duty and imposed penalty on the same amount. The notice invoked the extended period contained in Sub-rule (1) of Rule 57-I alleging suppression of ‘material facts’ of clearance.
2. After hearing both sides, the extended period of limitation would not be available. The notice does not indicate what the “material facts” are, which the assessee was required to declare and had withheld from the department. The departmental representative may be right when he says a classification list ought to have been filed for the goods which was not done. Despite this however, we do not see how the department would not have come to know of the clearance of the goods. The appellant had issued gate passes for the goods showing the duty paid on them to be equal to the credit that was taken i.e. lower than the rate of duty that was applicable when the goods were cleared. From this alone, the department would have come to know there was short payment of duty. Further, the debit made of the credit in part II of the RG 23A register and the appropriate entry in the part II would have been communicated by means of the monthly extract of these register which were required to accompany RT12 return. There is no allegation that this was not done.
3. In any event, from the fact that the goods went to the appellant’s own firm, it would follow that even if it had paid higher duty that would have been available at the factory of the destination of the appellant. There was therefore no motive for the appellant not to pay higher duty and the requirement contained in the proviso under Sub-rule (1) of Rule 57-I intent to evade duty would not arise. The ratio of the decision of the Tribunal in Jay Yuhshin Ltd. v. CCE – 2000 (119) E.L.T. 718 would apply. The demand would therefore be barred by limitation.
4. The appeal is allowed and the impugned order set aside. Consequential relief.