http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  5305 of 2005

PETITIONER: M/s Geo Tech Foundations & Construction

RESPONDENT: Commnr. Of Central Excise, Pune

DATE OF JUDGMENT: 07/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 5305 OF 2005   (With Civil Appeal No.2383/2006) (With Civil Appeal No.2385/2006) (With Civil Appeal No.7412/2005) (With Civil Appeal No.7621/2005) (With Civil Appeal No. 1330/2008)

Dr. ARIJIT PASAYAT, J.  Civil Appeal Nos. 5305/2005, 7412 and 7621/2005 1.      These appeals are directed against separate judgments of  the Customs, Excise and Service Tax Appellate Tribunal,  Mumbai  Central (in short ’CESTAT’) . The factual background  needs to be noted in brief.  

2.      Factual scenario is noted in respect of Civil Appeal  No.5305 of  2005. But the conclusions on the legal issues will  cover the other appeals.    3.      Appellant manufactures PSC girders at site to be used in  the construction of Railway Bridge for Konkan Railways. The  period involved is June 1994 to February, 1995. These articles  were cleared without payment of central excise duty under  Central Excise Act, 1944 (in short the ’Act’).  A show cause  notice was issued on 8.5.1996 and the appellant was asked to  show cause as to why duty amounting to Rs.53,91,498/-  should not be demanded from it,  as the girders were cleared  without payment of duty, why they should not be confiscated  and why penalty should not be imposed on the person  concerned.  

4.      The Commissioner adjudicated the case demanding duty  and confiscating the girders which were by then removed to be  placed on the bridge and imposed penalties.  

5.      The stand of the appellant before the CESTAT was that  the show cause notice was barred by limitation, inasmuch as  it was issued beyond the statutory period of 6 months as  provided at the relevant time. Further, the department had  knowledge of the fact that the appellant manufactured PSC  girders in 1994 itself. The show cause notice was issued in  1996 i.e. after the period of limitation. It was further  submitted that even on merits there was no scope for  demanding duty. In the alternative, it was pleaded that there  was no marketability of PSC girders and since the girders are  not marketable, therefore, the question of levying any excise  duty under the Act did not arise.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

6.      The CESTAT held that the larger period of limitation was  available. On the question of marketability the matter was  referred to a larger Bench  of the CESTAT.  

7.      In C.A. Nos.7412/2005 and 7621/2005, challenge is to  the final order of CESTAT rendered by a larger Bench holding  that the benefit of Notification No.59/90-CE cannot be  extended to PSC girders as they are  goods which are not  manufactured at site for construction of buildings. Therefore,  the articles were held to be subject to excise duty.  

8.      In support of the appeals, Mr. Joseph Vellapally, learned  senior counsel for the appellant submitted that two appeals  were decided by CESTAT on the question of manufacture. One  related to the present appellants and the other to M/s Asian  Techs. Ltd. Correctness of the judgment in M/s Asian Techs.  Ltd.  was considered by this Court in Larsen & Toubro Ltd. v.  Commissioner of Central Excise, Pune-II (2007 (211) E.L.T.  513 (S.C.). This Court held that since there was bona fide  doubt as to whether the activities carried on amounted to  manufacture or not, same was a debatable issue and the  questions were answered differently by different Benches  and,  therefore, the extended period of limitation in terms of Section  11-A of the Act cannot be applied.   

9.      It is to be noted that in the facts of the present case,  earlier notice was issued which was withdrawn and the second  notice was issued on 8.5.1996. Prior to the amendment by Act  10 of 2000 w.e.f. 12.5.2000 the extended period of limitation  was one year. After the 2000 amendment the period has  become 5 years.    

10.     Admittedly, when the first show cause notice was issued,  the extended period of limitation was not resorted to. A notice  should ordinarily be issued within a period of six months (as  the law then stood) i.e. within the prescribed period of  limitation but only in exceptional cases, the said period could  be extended to one year or five years, as the case may be.  When in the original notice, such an allegation had not been  made, we are of the opinion that the same could not have been  made subsequently as the facts alleged to have been  suppressed by the appellant were known to them.

11.     In P & B Pharmaceuticals (P) Ltd v. Collector of Central  Excise (2003 (153) E.L.T.14 (S.C.) this Court held as under: "19. However, Mr. Jaideep Gupta submits that  the Tribunal did not accept that here has been  assignment of logo in favour of the assessee.  We are unable to accept the contention of the  learned counsel. The tenor of the order, "the  assessee had produced certain documents  such as registration form, trade mark  authorities assigning the trade mark to them  but the fact remains that there was material  evidence by way of seizure of goods  manufactured by M/s P & B Laboratories  bearing the same logo much after the alleged  transfer of trade mark to the appellants’  discloses that the Tribunal accepted that there  has been an assignment but proceeded to deal  with the case of inapplicability of the  exemption under the notification on the  ground that the logo was being used by M/s P  & B Laboratories also. We have already

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

indicated above that use of logo of the  manufacturer by third parties is alien for  purposes of denial of exemption on the  strength of Para 7 of the notification. In this  view of the matter, we are unable to uphold the  order of the Tribunal denying the exemption to  the assessee.

20.     In any event, the ground that the  assessee has suppressed the fact that M/s P &  B Laboratories was also using the logo for  availing the benefit under the notification  cannot be a valid reason to invoke the proviso  to Section 11A of the Act. There is no  obligation on the owner of a logo to make a  roving enquiry to ascertain whether any other  person is also using his logo and disclose it to  the authorities to avert a possible allegation of  suppression of fact for purposes of invoking  the proviso."   

12.     One further aspect cannot be lost sight of. The appellant  as well as Konkan Railways raised a definite plea of bona fide.  Such a plea had not been rejected. On the contrary, as noted  above, there was diversion of views and the issue was  answered by different Benches of the CESTAT. That being so,  the extended period of limitation could not have been invoked.  As the facts alleged to have been suppressed by the appellant  were known to the department, in that view of the matter the  extended period of limitation under Section 11-A of the Act  has no application. Invocation of Section 11-A, was  impermissible, and therefore, we set aside the order of  CESTAT which is the subject matter of challenge in Civil  Appeal No.5305 of 2005. The appeal is allowed.   13.     In view of the conclusions in C.A.5305 of 2005 there is  no need to consider the question of marketability and/or  excisability. The issue is academic. In view of the decision in  connected Civil Appeal No.5305 of 2005, Civil Appeal  Nos.7412 of 2005 and 7621 of 2005 are allowed.

Civil Appeal 1330/2008          14.     The show cause notice was issued on 30.5.1996. In view  of what has been decided in C.A. No.5305/2005, the appeal  deserves to be dismissed only on the ground of limitation.  

Civil Appeal No.2383/2006  15.    The dispute relates to the period from April 1993 to July,  1993. A show cause notice was issued on 8.5.1996. In view of  what has been stated in C.A.No.5305 of 2005 decided today,  the appeal deserves to be dismissed only on the ground of  limitation.  

Civil Appeal No 2385 of 2006 16.      The period involved is November, 1993 to December,  1994 and the show cause notice was issued on 3.12.1996. In  view of what has been stated in C.A.No. 5305 of 2005 decided  today, this appeal deserves to be dismissed which we direct.