ECE Industries Limited vs Commissioner of Central Excise, New Delhi

This appeal is against the judgment of the Customs, Excise and Gold (Control) Appellate Tribunal dated 4th March, 1999. The question is whether the parts used for repair or replacement during the warranty period are excisable. This question is answered by a decision of this Court rendered on 25th March, 2003 in Civil Appeal Nos. 3643-3644 of 1999 Bharat Heavy Electricals Ltd. Vs. Commissioner of Cus. and C. Ex., Indore, . On the principles laid down in that decision, it is held that duty is payable on the parts.

However, in this case a further question arises i.e. whether in respect of the concerned show cause notice dated 27th May, 1994, the respondents were entitled to invoke the extended period of limitation u/s 11A of the Central Excise Act, 1944. The Tribunal negatived the contention of the appellant and hold that there was suppression and therefore the extended period of limitation was available.

Some few facts necessary for a decision on this point are as follows :-

The appellants were using parts, in respect of which the Modvat credit was availed. Even though they have not paid duty, they did not reverse the credit. The Department, therefore, issued show cause notices on 28th May, 1993 and 4th November, 1993. By these two show cause notices the appellants were called upon to show cause as to why duty and penalty be not levied on them for not having reversed the Modvat credit. These show cause notices were adjudicated by an order dated 2nd March, 1994. Thereafter, the concerned show cause notice dated 27th May, 1994 was issued. This has been adjudicated by an order dated 13th November, 1997.

In the case of P and B Pharmaceuticals (P) Ltd. Vs. Collector of Central Excise, , the question was whether the extended period of limitation could be invoked where the Department has earlier issued show cause notices in respect of the same subject-matter. It has been held that in such circumstances, it could not be said that there was any wilful suppression or mis-statement and that therefore, the extended period u/s 11A could not be invoked.

In our view, the principles laid down in above case fully apply here. As earlier proceedings in respect of same subject matter were pending adjudication it could not be said that there was any suppression and the extended period u/s 11A was not available.

To this extent the impugned judgment requires to be and is set aside. Ordered accordingly.

It must also be mentioned that as there is no suppression, penalty cannot be imposed.

The appeal stands disposed of accordingly. There will be no order as to costs.