ewwa-wsK,^..-,-^^..^.^^ ^^.-a^^Kws.s.^s:-:..:..,.-~..^'»SK^.w..^^.^^:^ait IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) ^ ;f'! ^" TAX CASE N0. APPELLANT:. ^^ OF 2011 Otvlsion Bencb -^ ^ ^ Union of India, through Commissioner, <^/v ^ '''^^'^ /' Central Excise & Custom, Central Excise Bhawan, ^< Dhamtari Road. Tikaraoara. Raiour. C.G /^"S^ •" c^' •^" ^^ .^^]^ ^y^ RESPWDENT: ^v M/s. Bharat Aluminium Co. Ltd. Balco Nagar, Distt. Korba (C.G.) APPEAL UNDER SECTION 35 G OF THE CENTRAL EXCISE ACT, 1944 READ WITH SECTION 83 OF THE FINANCE ACT, 1994 •^. ."X •w^s^.^' ^%&^ ^1... HIGH CQURT QF CHHATTISGARH ATBILASPUR TaxCaseNo.18cf2011 ADDellant ResDOndent Union oflndia yersys M/s. Bharaf Aluminium Co. Ltd, D-B^: Hon'blfi Shri Satish K. Acinihotri & Hon'ble Shri Radhe ShvamSharma, JJ. Present: Shri Bhishm^ Kinger, counsei for the appellant. Appeal underSection 35 G ofthe Central ExciseAct,1944 readwith Section 83 of the Finance Act, 1994 ORAL ORDER (Passed on 1stAugLi3t, 2011) Heard onadmission. 2. The instant appeal has been oreferred by the appellant seeking dismissal ef order dated 19.10.2010 passed by the Customs, Excise and ^ervice Tax Appellate Tribunal, New Delhi (henceforth 'the Tribynal') in Excise Appeal No.549 of 2009-SM(BR), wherebytheappealpreferredbytheappellanthasbeenrejected. I • ' . ••." : . -\ '•..•.• ..• . ' ' ... ' '•• • . . • ; ...;•.. 3. Factsof the case, in brief, are that during the course of audit of books of accounts by the Audit Officsrs, AGCG, it was found that during the period ofSeptember, 2002 to April, 2004, the respondent had availed inadmissible credit on capital goods imported under .1 - ..'."•.• . • . . .' • /•.. .' ..'. .•' . • •'. • . . . . •.' . -. DEPB Scheme. As per the said notification, the respondent was not entitled to take the credit under Cenval Credit Ruies on the capita! goods purchased under DEPB scheme. Accordingly, a show-Cause notice was issued on 5;6.2007. The Adjudicating Authority ~~~19 confirmed the dernand along with interest and penalties. But, on ^ appeal before the Gommissipner (Appeals), the demand was set aside holding thal the shQW-Gause notice was barred by limitation, as extended period was nqt invokable in this case. Against the said prder, the appellant prefeFred Excise Appeal No.549 of 2009- SM(BR), which, by the impugned order, has beeh rejected by the Tribunal." 1/ !. '•./'.'.'."..'111. •.•'l'.\: '• l.;; . .1/ .:.:;''.;;'':1 •:.-.•''/•''••'•:'-.::.^.''. ^.-;1-; 4/ Learned CQun§elforthe appellant argued^^^t^ has syppressed material fact and it never intimated the said fact through any correspondence, report, return or any document on its own accord and the fact of availing inadmissible credit ori capital goods imported ynder DEPB Scheme came to the notice of the appellaht only during the course of statutory audit by AGCG (Accountant General of Chhattisgarh). He further argued that legal provision for jssuahce of a show-caiise notjce iri' a case of suppression of fact! is fiye years and, therefore, the show-cause notice is within limitation. He has further i-eferred to the order of Adjudicating Authority, wherein, it has be6n held that the respondent , did not dispute the atlegation of non-disciosure of fact and, therefore, the respondent is liable for penal action as proposed in fhe show- caus^notice. 5. The Tribunal has come to the conclusion that there was no suppression offact and as such, the extended period of five years as provided under proviso to section 11A of the Central Excise Act, 1944 (fors/70/f jy4ct ^944^ isnotattracted.TheTribunalhas reljedon a decision oftheGujarat High Court in CCE <& Cus, Surat 11 'l. '^^.^•'^M,- ^'^•^•. -3'ni; v. MTZ Polyfilms Ltcl^. We are in respectful agreement with the decisjon of the Gujarat High Court jn M7Z Po/)^ws l^.1. Ttius, the decisibn of the Tribunal that It was not a case of suppressjon of facts pn the part of the resppndents from the Department, is purely a finding offact and it cannot besaidthatthe finding offactreGorded bytheTribunaIisperverseasnothinghasbeenproducedtoholdas suchf?: ',:1 •'-•'" .':';''-"'\;i'~.;''\^":"''"-"l:. ';'1-' •',••/'l.':1'. •y..';-'.'^1.-1'.' 6. In the above facts and circumstances, no sub$tantial question of law arises in this appeal for consideration of ttiis Coyrt under \'-. ' : •' • • '• '• '. .-' • —.'. . •-•.; • ..:•:• . ' .; . . ...•'.' ".. \ . •• .. ;• Section 35-G of the Central Excise Act, as the authorities below haye rightly held that there is na suppression of fact by the respondent and morepver, the show-cause notice, issued on 5.6.2007, wasbeyondthe periodof limitation, i.e.,oneyear. .tu-'v. '':'•"/. '""' •'';' ''':'.'''''*.' '.^' ~''.:. '^" .'.' ' : ^.^ ' • ' '.' .'• .'' • 7. For the reasons aforestated, the instant appeal is djsmissed and theorder under appealisaffirmed. - Sd/- Satish K. Agnihotri Judge Sd/- R.S. Sharma judge ' 2010 (256) ELT 539 (Quj) .'.{