2011 Supreme(SC) 167

2011 (1) Supreme 763
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and Anil R. Dave, JJ.
The Commissioner of Central Excise Visakhapatnam — Appellant
versus
M/s. Mehta & Co. — Respondent
Civil Appeal No. 1090 of 2009
Decided on : 10-2-2011

Headnote:Central Excise Act, 1944 -Assessee allegedly manufactured goods covered under different chapter headings at customer’s site and removed them without payment of proper duty of excise with an intention to evade payment of duty-Order passed by Commissioner confirming the demand of Rs. 43,59,710/- out of the proposed demand of Rs. 62,94,910/- under Rule 9(2) along with penalty of equal amount and directed redemption of confiscated goods after the payment of a fine of Rs. 1,00,000/- plus the duty and penalty adjudged-Appeal-Allowed by CESTAT remanding matter to the concerned adjudicating authority to examine the matter afresh –Order passed by Commissioner, confirming the demand of Rs. 14,94,656/- with penalty and interest -Appeal-Allowed by Tribunal-Appeal-. The cause of action, i.e., date of knowledge could be attributed to the appellant in the year 1997 when in compliance of the memo issued by the appellant and also the summons issued, the hotel furnished its reply setting out the details of the work done by the appellant amounting to Rs. 991.66 lakhs and at that stage only department came to know that the work order was to carry out the job for furniture also- A bare perusal of the records showed that said reply was sent by the respondent on receipt of a letter issued by the Commissioner of Central Excise on 27.2.1997- If period of limitation of five years is computed from the said date, the show cause notice having been issued on 15.5.2000, demand made was clearly within the period of limitation as prescribed, which was five years (Para 24)

        Central Excise Act, 1944 -Assessee allegedly manufactured goods covered under different chapter headings at customer’s site and removed them without payment of proper duty of excise with an intention to evade payment of duty-Order passed by Commissioner confirming the demand of Rs. 43,59,710/- out of the proposed demand of Rs. 62,94,910/- under Rule 9(2) along with penalty of equal amount and directed redemption of confiscated goods after the payment of a fine of Rs. 1,00,000/- plus the duty and penalty adjudged-Appeal-Allowed by CESTAT remanding matter to the concerned adjudicating authority to examine the matter afresh –Order passed by Commissioner, confirming the demand of Rs. 14,94,656/- with penalty and interest -Appeal-Allowed by Tribunal-Appeal- Relying upon decision in Craft Interiors Pvt. Ltd. vs. CCE, Bangalore held that ordinarily furniture refers to moveable items such as desk, tables, chairs required for use or ornamentation in a house or office- So, therefore, the furniture could not have been held to be immoveable property- A perusal of records also indicated that Commissioner in his order had listed out various items which were held as furniture and while doing so, he had scrutinized records to determine the immovability or movability of the items-A bare perusal of the said order also indicated that he had given deductions for the items held as immovable- He had prepared Annexures 1,2, 3 and 4 and the items mentioned in Annexures 1 and 2 had been held as ‘furniture’ after proper examination of the records whereas he had held items in Annexures 3 and 4 as immovable and had allowed deduction- So far as the items such as chairs, tables etc. listed in Annexure 5 was concerned, the same admitted to be furniture by assessee himself- The Commissioner having considered the said issue carefully and after proper scrutiny, the Tribunal was not justified in rejecting the said findings by mere conclusion and without trying to meet the findings recorded by the Commissioner-Impugned order passed by Tribunal set aside and that of Commissioner restored-Appeal allowed (Paras 25 to 29)

       Facts of the Case :

        Assessee herein in the instant case allegedly manufactured goods covered under different chapter headings at customer’s site and removed them without payment of proper duty of excise with an intention to evade payment of duty.An Order was passed by Commissioner confirming the demand of Rs. 43,59,710/- out of the proposed demand of Rs. 62,94,910/- under Rule 9(2) along with penalty of equal amount and directed redemption of confiscated goods after the payment of a fine of Rs. 1,00,000/- plus the duty and penalty adjudged.Appeal thereagainst was Allowed by CESTAT remanding matter to the concerned adjudicating authority to examine the matter afresh .Thereafter Order was passed by Commissioner, confirming the demand of Rs. 14,94,656/- with penalty and interest .Appeal thereagainst was Allowed by Tribunal.

        2. Present appeal has been been filed against said order of Tribunal.

       Findings of the Court :

        Relying upon decision in Craft Interiors Pvt. Ltd. vs. CCE, Bangalore Held that ordinarily furniture refers to moveable items such as desk, tables, chairs required for use or ornamentation in a house or office. So, therefore, the furniture could not have been held to be immoveable property. A perusal of records also indicated that Commissioner in his order had listed out various items which were held as furniture and while doing so, he had scrutinized records to determine the immovability or movability of the items. A bare perusal of the said order would also indicate that he had given deductions for the items held as immovable. He had prepared Annexures 1,2, 3 and 4 and the items mentioned in Annexures 1 and 2 had been held as ‘furniture’ after proper examination of the records whereas he had held items in Annexures 3 and 4 as immovable and had allowed deduction. So far as the items such as chairs, tables etc. listed in Annexure 5 was concerned, the same admitted to be furniture by assessee himself. The Commissioner having considered the said issue carefully and after proper scrutiny, the Tribunal was not justified in rejecting the said findings by mere conclusion and without trying to meet the findings recorded by the Commissioner.Impugned order passed by Tribunal set aside and that of Commissioner restored.Appeal was allowed