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Judgment
A. Selvam, J.—This Civil Miscellaneous Appeal has been directed against the order passed in Appeal No. B/1187/2001 by the
Commissioner (Appeals), Tiruchirappalli and in Final Order No. 1108/2008 by the Customs, Excise and Service Tax Appellate Tribunal, South
Zonal Bench, Chennai [ 2009 (235) ELT 478 ]. The appellant herein has issued a notice of demand whereby directed the respondent to pay a sum
of Rs. 14,90,000/- as duty on the ground that the respondent has been running two units, one in Tamil Nadu and another in Kerala. The demand
made by the appellant has been confirmed in order-in-original No. 23/2001, dated 22-5-2001. But the demand as well as confirmation order have
been set aside by the Commissioner (Appeals), Tiruchirappalli. The order passed by the Commissioner (Appeals), Tiruchirappalli has been
confirmed in Final Order No. 1108/2008 in Appeal No. E/1187/2001. Against the orders referred to supra, the present Civil Miscellaneous
Appeal has been preferred.
At the time of admitting the present Civil Miscellaneous Appeal, the following substantial questions of law have been settled for consideration:
(a) Whether the CESTAT is right in upholding the Commissioner (Appeals) view and ruling that there is no suppression of facts with intention to
evade duty, when ''mens rea'' is evident from the two contradictory declaration filed by the manufacturer for the same financial year?
(b) Whether the CESTAT is right in extending the SSI benefits to the unit totally against the language and dictum of the Notification No. 16/97,
dated 1-4-1997?
(c) Whether the CESTAT is right in interpreting the word ''manufacturer'' as applicable separately for one unit of assessee to another unit when it is
clear that the intention as well as the language of the legislation while conceiving the Notification No. 16/97 was for one single entity as a whole?
The learned counsel appearing for the appellant has contended with great vehemence that the respondent has been manufacturing Potassium
Chloride and it has two units, one in Tamil Nadu and another in Kerala and the respondent has schemingly suppressed the existence of its unit in
Kerala for the purpose of paying duty and under the said circumstances the demand in question has been given and the same has been confirmed in
order-in-original, but the Commissioner as well as Appellate Tribunal have erroneously found against the appellant and therefore the orders passed
by the Commissioner as well as Appellate Tribunal are liable to be set aside.
The learned counsel appearing for the respondent has contended that in the final order it has been clearly stated that though the respondent is
having two units, it has paid excess duty and further the demand made by the appellant is barred by limitation and under the said circumstances
there is no scope for interfering with the concurrent orders passed by the Commissioner as well as Appellate Tribunal and therefore the present
Civil Miscellaneous Appeal deserves to be dismissed.
For considering the divergent submissions made on either side, the Court has to look into the order passed by the Commissioner (Appeals) as
well as Final Order passed in No. 1108/2008. In both the orders, it has been clinchingly stated that the respondent has paid excess duty and
further in the final order it is observed as follows:
There is no dispute about the correctness of the finding of the Commissioner that even when considered against this condition of the notification,
the respondent had paid excess amount than what it was required to pay. Therefore we find that there was no short levy of duty in respect of
clearances from the Salvarpatti unit of the respondent. The notification does not lay down that in cases where an assessee opted to pay tariff rate in
respect of one unit, the same shall be applicable also for clearances from any other unit. Appeal does not canvas the case of short levy on any
other ground. Therefore, there was no short levy of duty in respect of clearances from the Salvarpatti unit. Moreover, any demand for differential
duty from the said unit was barred by limitation as the larger period had been invoked without establishing existence of the circumstances such as
suppression of fact with intent to evade payment of duty. In the circumstances, we do not find any reason to interfere with the impugned order.
Accordingly, the impugned order is sustained and the appeal filed by the revenue is dismissed.
From the conjoint reading of the orders, which have been challenged in the present Civil Miscellaneous Appeal, it is easily discernible that the
respondent has paid excess duty apart from the amount claimed on the side of the appellant. Since the respondent has paid excess duty other than
the amount mentioned in the demand notice, it is needless to say that the concurrent orders passed by the authorities referred to above are
perfectly correct and the same do not require any interference and the substantial questions of law formulated in the present Civil Miscellaneous
Appeal are decided in favour of the respondent and therefore the present Civil Miscellaneous Appeal deserves to be dismissed. In fine, this Civil
Miscellaneous Appeal deserves dismissal and accordingly is dismissed without costs.