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2012-ITS-441-CESTAT-M/s.Paper Products Ltd. -Vs- Commissioner of Central Excise, Kol-III , Date of Pronouncement :-20.3.12
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA

Appeal No.Ex.Ap.698/06

(Arising out of Order-in-Appeal No.61/Kol-III/06 dated 07.08.2006 passed by the Commissioner(Appeal-I) of Central Excise, Kolkata.)

FOR APPROVAL AND SIGNATURE

HON BLE SHRI S.K. GAULE, MEMBER(TECHNICAL)
HON BLE DR. D.M. MISRA, MEMBER(JUDICIAL)

M/s.Paper Products Ltd. Applicant (s)/Appellant (s)

Vs.

Commissioner of Central Excise, Kol-III Respondent (s)

Appearance:

Shri S.N.Sinha Mahapatra, Advocate for the Appellant (s)

Shri S.Chakraborty, A.C.(A.R.) for the Respondent (s)

CORAM:

Hon ble Shri S.K. Gaule, Member(Technical)
Hon ble Dr. D.M. Misra, Member(Judicial)

Date of Hearing:- 20.3.12
Date of Pronouncement :-20.3.12

Bottom line:-  We find that period involved in this case is from December 1989 to September 1990 and the Show Cause Notice cum demand notice was issued on 30.9.92 which is beyond the period of six months prescribed under section 11A of Central Excise Act, 1944 which stood at the material time. On perusal of the requisite classification list we find that the appellant disclosed in the column of description that polythene quoted paper received from outside. Therefore the charge leveled against them that they have suppressed material fact from the depart does not hold good and the extended period is not invocable in this case.

ORDER NO .

Per Shri S.K.Gaule.

1. Heard both sides.

2. Appellant filed this appeal against Order-in-Appeal No.61/Kol-III/06 dated 07.08.2006 whereby ld.Commissioner(Appeals) has upheld the lower adjudicating authority s order.

3. Briefly stated the facts of the case are that the appellants were engaged in the manufacture of flexible packaging item falling under chapter 48 or 39 or Central Excise Tariff Act, 1985. They were also carrying out printing of poly-quoted paper. And they claimed benefit of notification No.117/89 dated 27.4.89. The department denied them the benefit of the Notification on the ground that they were purchasing the polythene quoted paper or paper board from the market and therefore they are not eligible for the benefit of Notification. Lower adjudicating authority accordingly confirmed the demand which was challenged by the appellant and Ld.Commissioner(Appeals) upheld the lower adjudicating authority s order. Aggrieved by the same the appellant are in appeal.

4. The contention of the appellant is that the demand has been issued only for a period of 10 months and for prior and after the said period of 10 months. Also they were availing the benefit of the Notification and the same has been allowed to them. The contention is that for the period of 10 months ranging between December 1989 to September 1990, the demand cum Show Cause Notice was issued on 30.9.92 which is beyond the period of six months prescribed under section 11A of Central Excise Act, 1944 as it stood at the material time. The contention is that for the period from October 1990 to march 1991 the Show Cause Notice cum demand notice issued. The issue was dropped by the lower adjudicating authority vide order No./21(30)7920IT-I/BRM/91 DATED 29.8.90. Ld.advocate appearing for the appellant also submitted that they have been filing classification list regularly.

5. The contention of the department is that the appellant at no stage disclosed that they are procuring the polythene quoted paper item from the market. Therefore extended period is rightly invoked in this case and the ld.A.R. appearing for the department also reiterated the findings of the ld.Commissioner(Appeals).

6. In his rejoinder ld.Advocate appearing for the appellant taken us through the relevant classification list No.3/2009 effective from September 1989 wherein they have mentioned in the column of description that Polythene quoted paper received from outside.

7. We have considered the submissions and perused the record. We find that period involved in this case is from December 1989 to September 1990 and the Show Cause Notice cum demand notice was issued on 30.9.92 which is beyond the period of six months prescribed under section 11A of Central Excise Act, 1944 which stood at the material time. On perusal of the requisite classification list we find that the appellant disclosed in the column of description that polythene quoted paper received from outside. Therefore the charge leveled against them that they have suppressed material fact from the depart does not hold good and the extended period is not invocable in this case. Therefore the demand is hit by limitation of time and the ld.Commissioner(Appeals) s order is liable to be set aside. Since we are deciding the appeal on the aspect of limitation of time we are not going into the merits of the case. The Appeal is allowed as above.
 




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