M/S Kushal Fertilisers (P) Ltd vs Commr.Of Customs & Cen.Excise,Meerut

2. Appellant is a company incorporated and registered under the Indian Companies Act, 1956. It is engaged in the manufacturing of M.S. conduit pipes with effect from 29th March, 1990. It is registered as a Small Scale Industrial Unit with the Directorate of Industries of the State of U.P.

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 declaration under Rule 174 of the Central Excise Rules, 1944 (for short `the Rules') for the purpose of claiming exemption from licensing control.

7. By reason of an order dated 21st July, 1994 the Commissioner of Central Excise, Merrut opined that the appellant was not entitled for exemption under Notification No.202/88 and that it suppressed the material facts with an intention to evade payment of duty as a result whereof extended period of limitation could be invoked. Appellant, however, was held to be entitled for Modvat credit of duty paid on inputs but restricted the credit to the extent of duty payable on bars.

8. The appeal preferred by the appellant before the Customs, Excise & Gold (Control) Appellate Tribunal was allowed by an order dated 23rd November, 2000 whereby the matter was remanded bank to the Commissioner for his consideration afresh. The Commissioner, however, reaffirmed his earlier order by an order dated 19th March, 2004.

9. An appeal preferred by the appellant thereagainst was allowed by the Customs, Excise & Service Tax Appellate Tribunal by its order dated 3rd March, 2005, directing :-

While arriving at above and observation, Hon'ble CESTAT observed that when the party vide their letter 22.01.1991 requested the department for certificate to the effect that their product is exempt from duty, the department had thus acquired the knowledge on receipt of this letter and accordingly charges of suppression of facts stopped w.e.f. 22.01.1991 whereas the total 5 period involved in the SCN is w.e.f. 26.03.1990 to 31.03.1991 and the SCN was issued on 28.03.1994.

objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal as if it were an application presented within the time specified in sub-section (1).

(3) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Commissioner of Central Excise, or, as the case may be, the other party may, within six months from the date on which he is served with notice of such refusal, apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal, shall state the case and refer it accordingly.

21. For the reasons aforementioned the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed with costs. Counsel's fee assessed at Rs.10,000/-.