- (1.) This is a Central Excise Reference arising out -from the order of the Tribunal dated 22.8.2011. At the instance of the Assessee, this Court has directed the Tribunal to draw the statement of case for the consideration on the following two questions: (1) Whether there could be any intention to evade payment of duty on the part of the applicants when the applicants always had the credit balance in their RG 23A Part II Register even after discharging duty liability and at no point of time they paid duty from their PLA? (2) Whether extended period of limitation under proviso to Section 11-A(1) of the Act could be invoked when the applicants always had surplus modvat credit in their statutory records and which fact has not been disputed by the Department?
(2.) The brief facts of the case are that M/s. Super Polyplast (Pvt.) Limited are engaged in the manufacturing of rigid PVC pipes. They were taking modvat credit on inputs, like, PVC Resin, Calcium Carbonate and other Chemicals. Rigid PVC Pipe is an excisable commodity. Central Excise Officers made a search at the factory of the Assessee on 2nd January, 1996. The records were not made available in the factory as they were reported to be lying in the registered office of the Company. On physical verification of the stock of the finished goods as well as the raw materials, excess quantities were found. Thus, they were seized. Some PVC Pipes were also found short. In the absence of any proper explanation, it has been inferred that the PVC pipes involving Central Excise Duty of Rs. 1,92,478/- were removed clandestinely. Some private records were found for the period 30th March, 1995 to 31st December, 1995, excluding August, 1995. On verification, it was found that in RG-I Register, only 15,250 pipes were recorded, as manufactured goods, whereas the actual production, as per private records, was 93815 pipes. On the basis of the aforesaid discrepancy, it was found that the Assessee had suppressed the production of 43565 pipes, valuing at Rs. 1,22,45,416/- evading Central Excise Duty amounting to Rs. 24,49,083/- by the aforesaid suppression of production for the period 10th March, 1995 to 31st December, 1995. The adjudicating authority has also estimated the suppressed production of PVC pipes valuing at Rs. 1,54,55,123/- involving Central Excise Duty of Rs. 30,91,025/- for the period April, 1994 to March, 1995 and August, 1995. It was also found that the modvat credit of Rs. 6,83,096/- was also not admissible. A show cause notice was issued under Section 11-A of the Central Excise Act on 1st July, 1996 to show cause why the demand of Rs. 24,49,083/- for the period 30th March, 1995 to 31st December, 1995, except August, 1995, and the demand of Rs. 30,91,025/- for the period of April, 1994 to March, 1995 and August, 1995 may not be confirmed. It has also been alleged that the modvat credit of Rs. 6,83,096/- has been wrongly availed, therefore, why the said amount may not be demanded and for the alleged suppression penalty may not be levied and why the PVC pipes for Rs. 11,72,011/- and the raw material valued at Rs. 11,99,720/- may not be confiscated.
(3.) The Assessee filed the detailed reply before the adjudicating authority.;