By TIOL News Service

MUMBAI, AUG 07, 2018: AGAINST the order passed by the Commissioner (Appeals) upholding the order of the original authority confirming the demand of CE duty, the appellant is before the CESTAT and submits that the demand notice has been served upon them by the department beyond the period of 5 years from the relevant date and, therefore, is time barred.

It is submitted that the period in dispute is from March 2005 to April 2005 and the show-cause notice was issued on 26.03.2010, but the same was communicated/served to the appellant on 17.05.2010, which is beyond the period of limitation prescribed under Section 11A(1) of the CEA, 1944. Inasmuch as the CE duty demand confirmed by the authority below cannot be sustained on the ground of limitation, the appellant contended.

The Bench considered the submissions and inter alia observed –

+ I find from the observation of the Commissioner (Appeals) that the Department was not in possession of any documentary evidence to prove the date of receipt of the show-cause notice by the appellant.

+ In the present case, since the requirement of Section 37C of the Act has not been complied with by the Department, I am of the view that the date of receipt of the show-cause notice on 17.05.2010, as claimed by the appellant should be accepted as the date of receipt of the order , for computation of the period of limitation.

+ Since the period in dispute is March 2005 to April 2005, the show-cause notice should have been issued within 5 years from such relevant date. In view of the fact that the notice had been issued after 5 years, the same cannot be acted upon for confirmation of the adjudged demand.

The impugned order was set aside and the appeal was allowed.

(See 2018-TIOL-2429-CESTAT-MUM)