- (1.) The Respondent No. 1 herein is engaged in the manufacture of Tower and Lattice Masts of Iron and Steel and other structures and parts of Iron and Steel falling under Chapter 73 of the Central Excise Tariff Act. The Respondent had filed classification declaration Under Rule 173B of Central Excise Rules 1944. The dispute is about the classification under the aforesaid Rules in which show cause notice dated 02.09.2003 was issued for the period from 01.03.2000 to 30.08.2000.
(2.) Since it was beyond the prescribed period of limitation contained in Section 11A of the Central Excise Act, longer period of limitation under proviso to Section 11A of the Act was invoked. The Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') Gulshan Kumar Arorahas allowed the appeal of the Respondent herein not only on merits but on limitation as well holding that it would not be permissible for the Department to invoke the provisions of proviso to Section 11A of the Act inasmuch as there was no suppression or mis-statement by the Respondent herein. Discussion in this behalf is contained in para 7 of the impugned judgment, operative portion whereof reads as under: We also note that the reference to Larger Bench's decision in the case of Nizam Sugar Factory v. Commissioner of Central Excise,1999 114 ELT 429 by the adjudicating authority is not relevant, inasmuch as the issue before the Larger Bench in that case was entirely different. The Larger Bench was considering the question of invocation of longer period, where during the relevant period there was admittedly suppression, which came to the notice of the revenue subsequently and as to whether in such situation, subsequent knowledge on the part of the revenue would curtail down the longer period of five year otherwise available to the department. As such, we find that the reliance on the said decision is not appropriate.
(3.) We are in agreement with the aforesaid view and for this reason, it is not even necessary to go into the merit of the case as the show cause notice itself was hit by limitation.;