G. Raghuram, J. - (1.) THIS is an assessee's appeal preferred against order dated 27 -1 -2004 passed by the Commissioner, Customs & Central Excise, Jaipur. Three appeals were preferred before the appellate Commissioner, by the appellant herein and by two officers of the appellant namely, its Chairman and the Deputy Manager. Appeals before the lower appellate authority were preferred against the common order -in -original dated 26 -9 -2001 passed by the Joint Commissioner, Central Excise, Jaipur -II. The primary order confirmed Central Excise Duty demand of Rs. 1,79,522/ - apart from interest and penalty of an equivalent amount under Section 11AC of the Central Excise Act, 1944 (the Act) and penalties of Rs. 1,000/ - each on two officials of the appellant. The appellant was a manufacturer of polyester/viscose yarn, alleged to have short remitted Central Excise duty of the specified amount, during April 1996 -97 to 1999 -2000. Proceedings were initiated by the show cause notice dated 27 -3 -2001 invoking the extended period of limitation under the proviso to Section 11A(1) of the Act. The show cause notice (at para. 9 thereof) specifically alleged that the appellant had suppressed/mis -declared the actual figures of forwarding charges collected on Ex -mill sales and of the depot handling charges collected, with intent to evade Excise Duty, in contravention of provisions of Section 4 of the Act (the Central Excise Act, 1944).
(2.) EVENTUALLY , and after due process the primary adjudication order confirmed levy of duty, interest and penalties including penalty of an equivalent amount as the assessed liability to duty i.e. Rs. 1,79,522/ -, under Section 11AC of the Act, against the appellant herein. Aggrieved by the primary order, the appellant and its officers preferred three appeals before the appellate Commissioner. The appellate Commissioner confirmed the liability to Excise Duty and to penalty under Section 11AC apart from interest leviable under Section 11AB, after recording a categoric finding that extended period of limitation was rightly invoked since the appellant had suppressed material facts from Department and this conduct legitimises invocation of the extended period (para. 6 of the appellate order). The appellate Commissioner however, deleted the penalty imposed on the Chairman of the appellant herein while confirming the penalty imposed on its Deputy Manager, by the primary authority.
(3.) THIS appeal was filed in 2004. In paragraph 8 and 10 of the memorandum of appeal (set out in Form No. E.A. -3 of the Rule 6) it is stated that the appeal is preferred against the penalty imposed under Section 11AC and that relief claimed in the appeal is for deletion of penalty imposed under Section 11AC. In the statement of facts set out in the memorandum of appeal however, it is broadly asserted that the appellant is aggrieved by non -consideration of its plea that in the facts and circumstances invocation of the extended period of limitation or imposition of penalty under Section 11AC of the Act, was wrong and illegal. Similarly, ground 1 of the Grounds of Appeal asserts a generic challenge that the appellate Commissioner erred in not holding that the whole proceedings were barred by limitation.;