CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI
V.K. Agrawal, P.G. CHACKO, JJ.
S.S. Bedi & Sons -Appellant
Versus
Commissioner of Central Excise, New Delhi-I -Respondent
Final Order No. 80/2002-C Appeal No. E/124/2002-C, 80 of 2002, E/124 of 2002
Decided On : 03-04-2002
S.C. Kamra,Jagdish Singh
Per V.K. Agrawal :
In this appeal, filed by M/s. S.S. Bedi
2. Shri S.C. Kamra, learned Advocate, submitted that the Appellants manufacture poly-bags which are exempted from payment of duty under Notification No. 4/97-CE dated 1.3.97; that they obtained Lay Flat Tubing as an intermediate product in the manufacture of poly-bags from plastic granules; that the impugned goods were exempted from payment of excise duty right from 1994-95 till today except for the financial year 1997-98; that the Additional Commissioner under the Adjudication Order No. 170/99 dated 7.10.99 has demanded the duty in respect of Lay Flat Tubing cleared during the period from 1.4.97 to 31.12.97 and imposed penalty of Rs. 50,966/- equivalent to the amount of duty under Rule 173Q of the Central Excise Rules, read with Section 11AC of the Central Excise Act; that the Commissioner (Appeals) under the impugned Order has confirmed the demand and the penalty. He, further, submitted that the entire demand is time barred as the show cause notice was issued on 7.4.99 i.e. beyond the normal time limit of 6 months; that there was no allegation of fraud, collusion, willful mis-statement, or suppression of facts in the show cause notice; that in absence of specific allegation of suppression of fact etc. the extended period of time limit cannot be invoked as held by the Supreme Court in the case of CCE Vs. H.M.M. Ltd., 1995 (76) ELT 497 (SC). He also mentioned that it is settled law that the plea of limitation, being a legal plea, can be raised before the Appellate Tribunal. Reliance has been placed on the decision in the case of CCE Vs. Hiper, 1989 (41) ELT 322 (Tribunal) and CCE Vs. Pioma Industries
(i) CCE Vs. Texmaco Ltd. - 1992 (61) ELT 477 (T),
(ii) Bombay Tubes
(iii) Kanoria Chemicals Vs. CCE - 1999 (112) ELT 294 (T)
3. The learned Advocate, further, contended that the impugned goods are not excisable goods since intermediate products are used captively in the factory of manufacture; that in the absence of marketability of the product it cannot be subjected to excise duty; that it is well settled that the goods must be known in the market and unless the test of marketability is satisfied duty cannot be levied as held in the case of U.O.I. Vs. Delhi Cloth