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Audi Automobiles V/S Commissioner of Central Excise, Indore

    Final Order Nos. A/52746-52748/2017-EX(DB) in Appeal Nos. E/58188-58189 and 58222/2013

    Decided On, 05 April 2017

    At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi

    By, MEMBER

    For Petitioner: Amit Jain, Advocate And For Respondents: M.R. Sharma, DR

Judgment Text

1. All the present appeals are filed against the Order-in-Original No. 5/Commr/CEX/2013, dated 20-3-2013 passed by the Commissioner of Central Excise, Indore. The period in dispute is 1-11-2004 to 31-3-2007. This is the second round of litigation before this Tribunal. Earlier the Tribunal vide order dated 2-1-2012 (Appeal Nos. E/100 to 102 of 2009) has observed that:

"4. In view of the above, we set aside the impugned order and remand the matter to Commissioner for deciding the issue of limitation and consequent penalty...."
2. In compliance with the aforesaid direction of the Tribunal, the Commissioner has examined the issue again and passed the impugned order dismissing the appeal of the assessee-appellants. Being aggrieved, the assessee-appellants have filed the present appeals.

3. With this background, we have heard Shri Amit Jain, learned counsel for the assessee-appellants and Shri M.R. Sharma, learned DR for the Department.

4. Shri Amit Jain, learned counsel for the assessee-appellants submits that on merits, at the relevant time, the issue involved in the present appeals was against them as per the decision of the Larger Bench of this Tribunal in the case of Eicher Motors Ltd. v. CCE, Indore : 2008 (228) E.L.T. 43 (Tri.-LB), so the matter was argued on limitation and the Tribunal has passed the above-mentioned direction. He further submits that the impugned order is non-speaking and extended period cannot be invoked in the instant case. He also relied upon the Board Circular F. No. B.3/1/2003-TRU, dated 18-6-2003 wherein it was mentioned that by following the decision of the Hon'ble Supreme Court in the case of Ujjagar Prints v. Union of India : 1989 (39) E.L.T. 493 (S.C.), notional profit of 15% was not required to be added in such cases as the same is considered to be already taken care of within the job charges. Lastly, he made a request that the impugned order may kindly be set aside as extended period was wrongly invoked in the instant case.

5. On the other hand, Shri M.R. Sharma, learned DR for the Department, has justified the impugned order. He also submits that the assessee-appellants knowing fully well that the duty is payable @ 110% of the cost of production supplied by M/s. Eicher Motors Ltd. He also submits that the assessee-appellants has added this duty in the case of M/s. Tata Motors, but the same was not added in the case of M/s. Eicher Motors Ltd. as has already been observed by the Commissioner in his impugned order in para 18.3.

6. We have heard both sides at length and perused the available record. The issue involved in the instant case is limited to extended period of limitation. From the record, it appears that the plea of the assessee-appellants is that the extended period cannot be initiated as the entire demand is time-barred. But the fact remains that the show cause notice dated 30-4-2008 was issued for the motor vehicles cleared by the noticee No. 1 during the period 1-11-2004 to 31-3-2007. From the record, it also appears that the statements of the assessee-appellants were recorded by the Officers in the month of December, 2005 and the notice was issued on 30-4-2008. The Apex Court in the case of Commissioner of Central Excise, Mumbai v. Kalvert Foods India Pvt. Ltd : 2011 (270) E.L.T. 643 (S.C); and Commissioner of Central Excise, Visakhapatnam v. Mehta & Co : 2011 (264) E.L.T. 481 (S.C), observed that in case of suppression, extended period of limitation is invocable.

7. In the instant case, it was well within the knowledge of the assessee-appellants that the duty is paya

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ble @ 110%. Thus, the notice was issued correctly invoking the extended period of limitation. When it is so, then without going into the merits of the case, we find no reason to interfere with the impugned order which deals only on limitation. Hence, the order passed by the Commissioner (Appeals) is hereby upheld. In the result, all the appeals filed by the assessee-appellants are dismissed.