LexM/S. GEO TFCH FOUNDATIONS & CONSTRUCTON versus COMMNR. OF CENTRAL EXCISE PUNE
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, ~2008] 4 S.C.R 575 MIS. GEO TFCH FOUNDATIO~S & CONSTRUCT'ON A v. COMMNR. OF CENTRAL EXCISE. PUNE (Civil Appeal No. 5305 of 2005) MARCH 7. 2008 8 [DR. ARIJIT PASAYAT AND ?. SATHASIVAM, JJ.] Central Fxctse Act, 1944 - s. 11--A - PSC Girders - Clearance of- Without payment of E:.'xcise duty - Show cause notice demandtng duty issued beyond period of c limitation - Held: InvocatiOn of extended period of limitation is impermissible m the facts of the cases. In Civil Appeal Nos 5305/2005, 7412/2005 and 7621/ 2005, PSC Girders were cleared without payment of duty. D Show cause notice was issued demanding the duty. Appellant-assessee contended that show cause notice was barred by limitation having been issued beyond the statutory period of six months prevalent at the relevant time. Alternatively it was contended that since the Girders E were not marketable, it could not be subjected to levy of duty. Central Excise and Service Tax Appellate Tribunal (CESTAT) held that extended period of limitation was available to the Revenue. On the question of marketability, "' the matter was referred to larger Bench of CESTAT. The larger Bench of CESTAT held in its orders which are F • subject of Civil Appeal Nos. 7412/2005 and 7621/2005 that the articles were subject to excise duty as they are goods which are not manufactured at site for construction of buildings. Civil Appeal Nos. 1330/2008, 2383/2006 and 2385/ G 2006 were also filed which bore the same issue. In appeal to this court, appellant contended that this court in Larsen & Turbo case had held that since there was 575 H J ) 576 SUPREME COURT REPORTS [2008] 4 S.C.R. A bonafide doubt as to whether the activities carried on amounted to manufacture or not, it was a debatable issue and the questions were answered differently by different ·Benches, therefore, extended period of limitation is not applicable. B Allowing Civil Appeal Nos. 5305/2005, 7412/2005 and 7621/2005, and dismissing Civil Appeal Nos. 1330/2008, 2383/2006 and 2385/2006, the Court 't HELD: 1.1 Admittedly, in Civil Appeal No. 5305/2005, c when the first show cause notice was issued, the extended period of limitation was not resorted to. A notice should ordinarily be issued within a period of six months (as the law then stood) i.e. within the prescribed period of limitation but only in exceptional cases, the said period t: D could be extended to one year or five years, as the case may be. When in the original notice, such an allegation had not been made, the same could not have been made subsequently as the facts alleged to have been suppressed by the appellant were known to them. E [Para 1 0] [579-D, E] P and B Pharmaceuticals (P) Ltd v. Collector of Central Excise 2003 (153) E.L.T.14 (S.C.) -relied on. 1.2 The plea of bona fide had not been rejected. On F the contrary, there was diversion of views and the issue was answered by different Benches of the CESTAT. That " being so, the extended period of limitation could not have ..., been invoked. As the facts alleged to have been suppressed by the appellant were known to the department, in that view of the matter the extended period G of limitation under Section 11-A of Central Excise Act, 1944 has no application. Invocation of Section 11-A, was impermissible. [Para 12] [580-E, F, G] 2. In view of the· conclusions regarding non- ?- H availability of extended period of limitation, there is no ' } M/S GEO -~ECH FOliNDATIONS & CONSTR. v. 577 COMMNR OF CENT EXCISE. PU~E [PASAYAT, J.] need to consider the question of marketability and/or A excisability. The issue is academic. [Para 13] [580-H; 581-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No ' 5305 of 2005 B From the f~nal Judgment and Order dated 11.03.2005 of the Customs Exctse and Service Tax Appellate Trlbunal, West Regional Bencn at MLmbai in Appeal No. E/3048/98, Final Order No W286, 287/WZB/2005/CII. WITH c Civil Appeal Nos. 2383 & 2385 of 2006: 7412 & 7621 of 2005 & 1330 of 2008, Joseph VellapaUy, P Vishwanatha Shetty and P.H. Parekh, D Romy Chacko, Arpit Gupta, Rashmi Malhotra, B. Krishna Prasad, M.P Vinod, Ajay K. Jain, Vimlesh Kumar, P. ~ Parmeswaran. Atul Y. Chitale, Sunanina Dutta Suchitra Atul Chitale, L.P Dhir, Maneesha Dhir, N. Keerti Singh, Kirti Singh, Pranab Kumar Mullick and Ajay Kumar Jha (for M/s. Parekh E and Co.) for the Appearing parties. The Judgment of the Court was delivered by Dr
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