CX - Duty demand upheld - Appellant submitting that sine qua non for invoking extended period & imposing penalty u/s 11AC is one & same - as order was passed after considering all material facts and judgements, no patent mistake exists: CESTAT
By TIOL News Service
MUMBAI, MAY 26, 2015: THE matter pertains to a ROM application filed against the order M/1820/14/EB/C-II dated 25/09/2014 - 2014-TIOL-2110-CESTAT-MUM.
M/s. Rakhoh Enterprise s were issued SCN denying the benefit of Notification No. 06/2006-CE dt. 1.3.2006 as amended in respect of Anchor Rings and Load Spreading Plates (LSP) manufactured by them and cleared to M/s. Suzlon Gujarat Wind Park Ltd. Duty of Rs.5.36crores was confirmed for the period Feb 2008 - Jan. 2013 along with equivalent penalty and interest.
The Division Bench vide the aforesaid order held that Anchor rings and Load Spreading Plates are used in the foundation of wind mill tower and cannot be considered to be part of Wind Operated Electricity Generators - benefit of exemption not available.
Accordingly,the duty demand along with interest was upheld. However, penalty was set aside.
Later, the Bench also passed a Corrigendum in this regard and reported as - 2015-TIOL-137-CESTAT-MUM.
Be that as it may, as mentioned, the appellant is before the CESTAT with a ROM application citing the following grounds:
+ There is an error apparent on record in not considering that sine qua non for invoking the extended period of five years under Section 11A (4) of the Act and for imposition of penalty under Section 11AC(1) of the Act is same i.e., fraud or collusion or suppression of facts, etc..
+ On the issue of limitation, the applicant had enclosed report of audit conducted during October 2005 to May 2009 as annexure-I with the appeal showing that exemption was claimed under Notification No. 06/2006-CE on articles iron and steel. They had also enclosed the assessee's profile in March 2010 for audit purposes showing anchor rings were cleared under exemption Notification No. 06/2006-CE.
+ Therefore, the out of total demand of Rs.5,36,83,181/- for the period February 2008 to January 2013, the demand of Rs.4,74,72,972/- for the period February 2008 to January 2012 is time barred.
+ There is a mistake apparent on record in para 15.2 of the Tribunal order in which it is stated that the case of BHEL related to a period when the Notification granted exemption to wind mills and their parts; that the Notification No. 90/91-Cus dated 25/07/1991 refers to Wind Operated Electricity Generators (WOEG).
The Bench observed -
++ We find that the Notification referred to in the Tribunal order at para 15.2 of the Tribunal order is Notification No. 205/1988-CE dated 25/05/88 which granted exemption to wind mills and any specially designed devices which run on wind mills, at Serial No. 12 of the table to the notification. This notification was applicable to Central Excise. The notification referred by the Counsel is a Customs notification. Therefore, we see no error apparent on record.
++ The audit report only refers to parts of iron and steel and does not mention anchor rings. The assessee's profile now enclosed as exhibit with the ROM was not presented earlier. It is handwritten and does not bear the stamp/signature of the appellant as in the case of Exhibit "C". Here again we find no error in recording the order.
++ The order was passed after considering all material facts and judgements. As held by the Supreme Court in the case of CCE, Belapur Vs. RDC Concrete (India) Pvt. Ltd., - 2011-TIOL-77-SC-CX, there is no patent mistake in this case.
The ROM application was dismissed.
(See 2015-TIOL-942-CESTAT-MUM)
