LexM/S KUSHAL FERTILISERS (P) LTD. versus THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, MEERUT
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·A B c (2009] 8 S.C.R. 238 MIS KUS HAL FERTILISERS (P) LTD. v. THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, MEERUT (Civil Appeal No. 3277 of 2009) MAY 6, 2009 [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] Central Excise Act, 1944/Central Excise Rules, 1944: Section 11 A/Rules 17 4, 209A - Company manufacturing conduit pipes, was directed by the Central Excise Authorities to file declaration under Rule 17 4 for the purpose of claiming exemption from licensing control - However, show cause notice also issued demanding Central D Excise Duty and as to why penalty shall not be levied in terms of Rule 209A stating that the Company was not entitled to exemption as gate passes described the product as 'bars' and thus the company intentionally suppressed the fact - Commissioner holding that the company was not entitled to E exemption but entitled to Modvat credit of duty paid on inputs but restricted the credit to the extent of duty payable on bars - On remand by Tribunal, the Commissioner reaffirmed his earlier order - Reference to High Court - Maintainability of - Held: Whether a party is guilty of suppression of fact or not is F essentially a question of fact - It does not per se give rise to substantial question of law - Impugned judgment of High Court set aside. Boodireddy Chandraiah vs. Arigela Laxmi (2007) 8 SCC 155; Commissioner of Central Excise, Chandigarh vs. G Punjab Laminates (P) Ltd. (2006) 7 SCC 431 and Mis Larsen and Toubro Ltd. vs. The Commissioner of Central Excise, Pune-11 (2007) 6 SCALE, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. H 238 .. KUSHAL FERTILISERS (P) LTD. v. COMMNR OF CUSTOMS AND CENTRAL EXCISE, MEERUT 3297 of 2009. 239 From the Judgment & Order dated 16.06.2008 of the High Court of Uttrakhand at Nainital in Central Excise Appeal No . . 09 of 2005. A Aneesh Mittal, Sunil Kumra Jain and Jaya Tamar for the B Appellants. K. Amareshwari and Revathy Raghavan (for Anil Katiyar) for the Respondents. The Judgment of the Court was delivered by c S.B. SINHA, J. 1. Leave granted. 2. Appellant is a company incorporated and registered under the Indian Companies Act, 1956. It is engaged in the o manufacturing of M.S. conduit pipes with effect from 29th March, 1990. It is registered as a Sm(311 Scale Industrial Unit with the Directorate of Industries of the State of U.P. 3. An investigation was said to have been carried out by the Preventive Unit of Saharanpur Division of the Central Excise E Department in regard to the business activities of the appellant · in which it was observed that it had neither obtained any Central' Excise licence for manufacture of conduit pipes nor filed any declaration with the department for granting them exemption from the licensing provisions. It is, however, now not disputed F that the appellant on or about 22nd January, 1991 informed the Section Officer of the Central Excise, Roorkee that it had been manufacturing M.S. conduit pipes and its production is exempt from payment of Excise Duty in terms of Notification No.202/ 98-CE dated 20th May, 1988. It, furthermore, appears from the G letters addressed by the appellant to the Superintendent, Customs and Central Excise, Rishikesh dated 29th April, 1991 and the Superintendent, Preventive and Intelligence Branch, Central Excise Division, Saharanpur dated 6th June, 1991 that the officers of the Central Excise Department had been visiting H 240 SUPREME COURT REPORTS [2009] 8 S.C.R. A the appellant's factory for inspection of their factory. 4. Indisputably again the appellant submitted its production and raw material register for inspection. However, by a notice dated 12th August, 1992 the appellant was directed to file a 8 declaration under Rule 17 4 of the Central Excise Rules, 1944 (for short 'the Rules') for the purpose of claiming exemption from licensing control. 5. However, a show cause notice was issued on or about 28th March, 1994, proposing demand of Central Excise Duty C of Rs.57,80,363/- under Section 11A of the Central Excise Act, 1944 (for short 'the Act') and also asking the appellant to show cause as to why penalty shall not be levied in terms of Rule 209A of the Rules contending that the appellant was not entitled for exemption as the gate passes covering the inputs described D the product as 'bars' and it suppressed the said fact with an intention to evade payment of duty. 6. Appellant filed his rep
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