Full Judgment Text
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CASE NO.:
Appeal (civil) 3158 of 2000
PETITIONER:
M/s. Anand Nishikawa Co.Ltd.
RESPONDENT:
Commissioner of Central Excise,Meerut
DATE OF JUDGMENT: 23/09/2005
BENCH:
S.N. Variava & Tarun Chatterjee
JUDGMENT:
J U D G M E N T
TARUN CHATTERJEE J.
Appellant M/s. Anand Nishikawa Co. Ltd. is a
manufacturer of rubber profiles which product after extrusion is
subject to notching or drilling of a few holes or slitting. The
appellant had classified such extruded rubber profiles under sub-
heading 4008.29 of the Central Excise Tariff which attracted Nil
rate of duty. The Revenue, however, classified such rubber
under heading 4016.19.
According to Revenue, the operations like notching,
drilling and slitting are "further working" and in view of Note 9
to Chapter 40, these goods fall outside Heading 40.08.
Accordingly, a show cause notice was issued in October, 1995
demanding duty of over Rs.2.18 crores for the period from
September 1990 to February, 1994 under the proviso to Section
11A of the Central Excise Act, 1944 (hereinafter referred to as
’the Act’). The Commissioner by his order dated 2nd August 1996
discharged the show cause notice, inter-alia, on the ground that
proviso to Section 11A of the Act was inapplicable in the facts of
the case. In his order, the Commissioner observed that the
authority had knowledge of the manufacturing process of the
appellant and was seized of the matter from the very beginning
and on few occasions, the department officers visited the factory
for collection of samples and study etc. Adverse inference was
also drawn by the Commissioner in his order dated 2nd August,
1996 against the department as show cause notice did not deal
with the correspondence exchanged between the appellant and
the department on the issue of classification from the year 1988.
An appeal was carried by the Department against the aforesaid
order of the Commissioner before the Customs, Excise and Gold
(Control) Appellate Tribunal, (hereinafter referred to as
"CEGAT") New Delhi which was allowed by the CEGAT on the
issue of limitation that is to say extended period of limitation
under proviso to Section 11A of the Act would be available in
the facts of this case. However, the matter was sent back to the
Commissioner for a decision on the question of classification and
availability of MODVAT credit etc. Against this order of
remand, passed by the CEGAT, this appeal has been filed under
section 35(L) of the Act in this Court which, on admission, was
listed for final disposal.
We have heard Mr. V. Sridharan, learned counsel appearing
for the Assessee/Appellant and Mr. Mohan Parasaran, the learned
Additional Solicitor General for the Revenue. We have
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carefully examined the show cause notice, the order of the
Commissioner discharging the show cause notice and the order
of the CEGAT holding that the authority was entitled to invoke
proviso to Section 11A of the Act in the facts of the case but
remanding the case, as noted herein before, to the Commissioner
for a fresh decision on the question which of the classifications,
namely 4008.29 or 4016.19 of the Central Excise Tariff in
respect of the product in question, would be attracted in the facts
of this case and also whether MODVAT facilities would be
available or not.
The only question that needs to be decided in this
appeal is whether the extended period of limitation under proviso
to Section 11-A of the Act would be available or not. Before
we take up, for our consideration, this question, involved in this
appeal, it would be fit and proper to refer to erstwhile Rule 10 of
the Central Excise Rules and section 11 A of the Act prior to and
after its amendment in 2000. On the question of recovery of
duties not levied or not paid or short-levied or not paid in full or
erroneously refunded, erstwhile Rule 10 of the Central Excise
Rules as it read at the relevant point of time and so far as it is
relevant for our purposes is set out as under :
"Rule 10. Recovery of duties not levied or not paid,
sort-levied or not paid in full or erroneously
refunded. \026 (1) Where any duty has not been levied or
paid or has been short-levied or erroneously refunded
or any duty assessed has not been paid in full, the
proper officer may, within six months from the
relevant date, serve notice on the person chargeable
with a duty which has not been levied or paid, or
which has been short-levied or to whom the refund has
erroneously been made, or which has not been paid in
full, requiring him to show cause why he should not
pay the amount specified in the notice:"
Provided that \026
(a) where any duty has not been levied or paid, has
been short-levied or has not been paid in full, by
reason of fraud, collusion or any willful mis-
statement or suppression of facts by such person
or his agent, or
(b) where any person or his agent, contravenes any
of the provisions of these rules with intent to
evade payment of duty and has not paid the duty
in full, or
(c) where any duty has been erroneously refunded by
reason of collusion or any willful mis-statement
or suppression of facts by such person or his
agent, the provisions of this sub-section shall, in
any of the cases referred to above, have effect as
if for the words "six months", the words "five
years" were substituted.
Proviso to this Rule 10 as noted hereinabove, however,
increases a period of six months to five years where there has
been "suppression of facts" or the like on the part of the Assessee.
Section 11A of the Act was introduced by Act No. 25 of 1978
w.e.f. 17.11.1980 in substitution of Rule 10 which was omitted.
Section 11A of the Act was as under :-
"11-A. Recovery of duties not levied or not paid or
short-levied or short-paid or erroneously refunded.
\026 (1) When any duty of excise has not been levied or
paid or has been short-levied or short-paid or
erroneously refunded, a Central Excise Officer may,
within six months from the relevant date, serve notice
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on the person chargeable with the duty which has not
been levied or paid or which has been short-levied or
short-paid or to whom the refund has erroneously been
made, requiring him to show cause why he should not
pay the amount specified in the notice:
Provided that where any duty of excise has not
been levied or paid or has been short-levied or short-
paid or erroneously refunded by reason of fraud,
collusion or any willful misstatement or suppression of
facts, or contravention of any of the provisions of this
Act or of the rules made thereunder with intent to
evade payment of duty, by such person or his agent,
the provisions of this sub-section shall have effect, as
if, for the words "six months", the words "five years"
were substituted."
Section 11-A was further amended in the year 2000 and the
amended provision runs as under:-
"11-A. Recovery of duties not levied or not
paid or short-levied or short-paid or erroneously
refunded. \026 (1) When any duty of excise has not been
levied or paid or has been short-levied or short-paid or
erroneously refunded whether or not such non-levy or
non-payment, short-levy or short-payment or
erroneous refund, as the case may be, was on the basis
of any approval, acceptance or assessment relating to
the rate of duty on or valuation of excisable goods
under any other provisions of this Act or the Rules
made thereunder, a Central Excise Officer may, within
one year from the relevant date, serve notice on the
person chargeable with the duty which has not been
levied or paid or which has been short-levied or short-
paid or to whom the refund has erroneously been
made, requiring him to show cause why he should not
pay the amount specified in the notice:
Provided that where any duty of excise has not
been levied or paid or has been short-levied or short-
paid or erroneously refunded by reason of fraud,
collusion or any willful misstatement or suppression of
facts, or contravention of any of the provisions of this
Act or of the rules made thereunder with intent to
evade payment of duty, by such person or his agent,
the provisions of this sub-section shall have effect, as
if, for the words "one year", the words "five years"
were substituted."
We have carefully examined the erstwhile Rule 10 of the
Central Excise Rules, section 11A of the Act as introduced in the
year 1980 and section 11-A of the Act after the amendment in the
year 2000. From a plain reading of Rule 10 of Central Excise
Rules, we find that the proper officer is conferred with power to
recover duties not levied or not paid or short-levied or not paid in
full or erroneously refunded to initiate recovery proceedings
within six months from the relevant date. However, Rule 10 of
the Central Excise Rules and Section 11-A of the Act prior to the
2000 amendment, did not say that recovery of duties not levied
or not paid or short-levied or not paid in full or erroneously
refunded could be done even where the classification of the
goods was approved by the Department.
Section 11A of the Act as it stands today, however, confers
powers not on the ’proper officer’ but on a Central Excise Officer
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to initiate recovery proceedings when any duty of excise has not
been levied or not paid or has not been short-levied or not paid in
full or erroneously refunded whether or not such non-levy or
non-payment or short-levy or short-payment or erroneous refund,
as the case maybe, was on the basis of any approval etc., relating
to the rate of duty on or valuation of excise goods within one
year from the relevant date.
Again, from a comparative reading of erstwhile Rule 10 of
the Central Excise Rules, section 11-A prior to its amendment of
the year 2000, it is pellucid that by the introduction of section
11A of the Act in the year 1980, a central excise officer, instead
of proper officer as indicated in erstwhile Rule 10, has been
conferred with power to initiate proceedings for recovery of duty
which has not been levied or paid or short-levied or not paid in
full or has been erroneously refunded. The conferment of power
to initiate a recovery proceeding on the Central Excise Officer
instead of proper officer was vested only on the introduction of
Section 11A of the Act. No substantial change was made by the
Legislature from Rule 10 excepting the changes already noticed
above.
By the 2000 amendment in section 11-A of the Act
Legislature thought it fit to extend the power of the Central
Excise Officer to initiate proceedings under section 11-A of the
Act even where any duty of excise has not been levied or paid or
has been short-levied or short-paid or erroneously refunded
whether or not such non-levy or non-payment, short-levy or
short-payment or erroneous refund, as the case may be, was on
the basis of approval of the classification list supplied by the
assessee from time to time. That apart, the present section 11-A
of the Act also fixes the period of limitation for initiating a
recovery proceeding within one year from the relevant date
which was six months under the erstwhile Rule 10 of the Central
Excise Rules and section 11-A prior to the 2000 amendment.
However, the amendment with respect to change in limitation
period from "six months" to "one year" was made effective from
12.5.2000. Therefore, this amendment is not relevant for the
purpose of this case.
Let us now look into the proviso of Section 11A of the Act
as it stands now. It clearly says that where any duty of excise has
not been levied or paid or has been short-levied or short-paid or
erroneously refunded by reasons of fraud, collusion or any
willful misstatement or suppression of facts or contravention of
any of the provisions of this Act or of the Rules made thereunder
with intent to evade payment of duty by such person, the
provisions of this sub-section shall have effect as if for the words
’one year’ the words ’five years’ were substituted.
A bare reading of the provisions made under Section 11-A
(1) together with the proviso to it, it is abundantly clear that
ordinarily notice to show cause has to be issued within one year
from the relevant date. However, in order to attract proviso to
section 11-A of the Act, that is to say, for extended period of
limitation within 5 years from the relevant date, it is necessary to
be satisfied that the non-levy, short-levy, or erroneous refund has
occurred on account of either of the following:-
(1) fraud,
(2) collusion,
(3) willful misstatement or suppression of facts,
(4) contravention of the Excise Act or Rules with an
intent to evade payment of duty.
So far as the present case is concerned, we shall keep it in
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our mind that the present case concerns only with "suppression
of facts". Statement of Objects and Reasons for amending
Section 11-A would be necessary to refer at this stage which is as
follows:
"Clause 106 seeks to validate certain action taken
under section 11-A of the Central Excise Act with
retrospective effect from 17th November 1980, so as to
prescribe that the notices issued under the said section
for non-recovery or short-recovery or erroneous refund
of duties for a period of six months or five years in
certain situations will prevail notwithstanding any
approval, acceptance or assessment of duty under the
provisions of the Central Excise Rules."
If we read the statement of Objects and Reasons for such
amendment, it is again abundantly clear that the amendment was
to be made with retrospective effect from 17th November 1980 so
as to prescribe that the notices issued under the said section for
non-recovery or short-recovery or erroneous refund of duties for
a period of 6 months or 5 years in certain situations will prevail
notwithstanding any approval under the provisions of the Central
Excise Rules. As noted herein earlier, the amendment with
respect to change in limitation period from "six months" to "one
year" was made effective only from 12.5.2000.
As discussed herein earlier, the changes made by the
Legislature through the amendment in section 11-A of the Act
was to confer power on the Central Excise Officer to initiate a
recovery proceeding under section 11-A of the Act irrespective
of the fact that the department had approved the classification list
supplied by the assessee from time to time. This amendment
was brought in order to negate certain decisions of this Court and
also High Courts in India saying that it would not be open to the
Central Excise Officer to initiate a recovery proceeding under
section 11-A of the Act, if the classification lists supplied by the
assessee were approved by the department from time to time.
As noted herein earlier, the erstwhile Rule 10 of the Central
Excise Rules and section 11-A prior to the 2000 amendment did
not postulate that, in cases of approval by the Department, a
proceeding for recovery of duties, for non-levy or non-payment,
short-levy or short-payment or erroneous refund, could be
initiated within six months or one year or five years, as the case
may be, from the relevant date but it is evident that by the
amendment in section 11A of the Act in the year 2000, in cases
of approval also of the classification lists supplied by the
assessee and accepted by the department from time to time, it
would be open to the Central Excise Officer to initiate a
recovery proceeding against the assessee under section 11A of
the Act within six months or one year or five years, as the case
may be, from the relevant date. That being the position, we are,
therefore, of the view that in spite of some decisions of this Court
or other High Courts of India holding that a recovery proceeding
under section 11A of the Act could not be initiated for recovery
of duties when the classification lists supplied by the Assessee
were approved by the Department from time to time, due to the
2000 amendment in section 11-A, recovery proceedings can now
be initiated even when the classification lists supplied by the
assessee were approved by the department from time to time. In
the case of Collector of Central Excise, Baroda vs. Cotspun
Ltd [1999 (113) ELT 353 (SC)], it was held that the levy of
excise duty on the basis of an approved classification list is not a
short-levy and therefore, differential duty cannot be recovered on
the ground that it was a short levy and therefore, the erstwhile
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Rule 10 of the Central Excise Rules or section 11-A of the Act
(prior to the 2000 amendment) had no application. This
Constitution Bench decision of this Court was, however,
concerned with the erstwhile Rule 10 of the Central Excise Rules
and section 11-A of the Act prior to the 2000 amendment. After
the amendment in section 11-A in 2000, it can be said that the
approval of the classification list supplied by the assessee cannot
take away the conferment of right on the Central Excise Officer
to initiate a proceeding for recovery of duties not-levied or paid
or short-levied or short-paid or erroneously refunded within six
months or one year or five years, as the case may be, from the
relevant date.
In Cotspun Ltd., (supra), we also find that this Court held
that when the classification list had been approved by the
Department, it remained valid and correct until its approval was
challenged. If differential duty had to be recovered upon such
successful challenge to classification by the Department, the
demand would be prospective from the date of show cause
notice. It is further evident from Cotspun Ltd’s case (supra) that
there was no retrospectivity to the revision of classification list.
By the time, this landmark decision was rendered by this Court,
the classification list system had changed to classification
declaration system where approval was no longer required.
Subsequently, in the Finance Act, 2000, the Parliament
retrospectively validated actions taken under section 11A of the
Act so as to overcome the decision insofar as past and concluded
proceedings were concerned. Therefore, consequent to the
retrospective amendment, the view that classification already
settled due to attaining of finality cannot be disturbed is no
longer valid law.
In view of the decision in Cotspun Ltd’s case (supra)
Section 11-A by Act No. 10 of 2000 was amended with
retrospective effect from 17.11.1980. The vires of the aforesaid
amendment was, however, challenged. In a recent decision by
this Court in the case of Easland Combines, Coimbatore vs.
Collector of Central Excise, Coimbatore [2003 (3) SCC
410], this Court has upheld the validity of the amendment and
also held that on account of such amendment, the decision in
Cotspun Ltd’s case (supra) has ceased to be a good law.
However, another two-Judges Bench decision of this Court took
a contrary view and held that the amendment had not altered the
basis of the judgment in Cotspun Ltd’s case (supra) and on a
reference from that Bench, the matter came up for consideration
in the case of ITW Signode India Ltd., vs. Collector of Central
Excise [2004 (3) SCC 48], before a three-Judge Bench. In that
decision, the amendment was not found to be ultra vires of the
Constitution and it held that the amended section 11A of the Act
is a valid piece of legislation.
On behalf of the Appellant, learned counsel Shri V.
Sridharan had drawn our attention to proviso to section 11A of
the Act which has already been noted herein earlier and contend
ed that extended period of limitation as mentioned in proviso to
section 11A of the Act in the facts of this case could not be
attracted and the Central Excise Officer could not invoke proviso
to section 11A of the Act. Before we examine this submission of
the learned counsel for the appellant, we must note that the
CEGAT in the impugned order held that the Central Excise
Officer in the facts of this case was entitled to invoke extended
period of limitation within the meaning of section 11A of the Act
as there was "suppression of facts" while supplying the
classification list. As noted herein earlier, proviso to section 11A
clearly shows that where any duty of excise has not been levied
or paid or has been short-levied or short-paid or erroneously
refunded by reason of fraud, collusion or any willful
misstatement or suppression of facts or contravention of any of
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the provisions of the Act or of the Rules made thereunder, as the
case may be, to evade payment of duty by such person, the
Central Excise Officer would be entitled to invoke proviso to
section 11A of the Act, that is to say, extended period of
limitation can be taken advantage of by him.
As noted herein earlier, from the facts of the present case,
we find that the only question that arose before the CEGAT or
the Commissioner was whether there was any "suppression of
facts" for which the authorities were entitled to invoke proviso to
Section 11A of the Act.
As noted herein earlier, the Commissioner while
adjudicating the show cause notice confirmed the duty demand
on goods found short and also imposed a penalty of Rs.10,000/-
on the assessee but he dropped the rest of the proceedings on the
ground that there was no "suppression of facts" on the part of the
appellant herein and accordingly extended period of limitation
was found by him not to be available to the department under
the proviso to section 11A of the Act. In appeal, CEGAT,
however, as noted herein earlier, reversed this finding of the
Commissioner and found "suppression of facts" from the
materials on record. If CEGAT was justified in holding that
there was "suppression of facts" by the appellant either regarding
their method of process of the product in question and
applicability of different classification lists, then certainly
CEGAT was correct in holding that extended period of limitation
under proviso to section 11-A of the Act could be applied in the
facts and circumstances of the case. In that event, this Court
would not be in a position to interfere with the order impugned in
this appeal.
Therefore, let us now examine whether CEGAT was
justified in holding that there was "suppression of facts" in the
matter of disclosure of manufacturing process or applicability of
the classification lists supplied by the appellant or not. It is seen
that Revenue alleged that the appellant had never disclosed to it
that they were carrying on process of notching, slitting,
punching, slotting etc. on rubber profiles and if they had done so
it would amount to "further working" thereby rendering the
products classifiable under sub-heading 4016.19 and not
classifiable under sub-heading 4008.29. It was also the case of
the Revenue that these operations came to the knowledge of the
Revenue only when an investigation commenced in the present
matter by the Directorate General of Anti Evasion which resulted
in the issue of the show-cause notice dated 19th October, 1995.
In the impugned order, CEGAT on perusal of the
correspondence between the appellant and the department was
unable to find any disclosure in writing by the appellant with
respect to post-forming processes like notching, drilling etc.
From the materials on record which were produced before the
authorities and also from the orders of the CEGAT and the
Commissioner, it can be seen that the department had the
opportunity to inspect the products of the appellants and in fact,
the factory of the appellants was inspected by them. It may be
true that the appellants might not have disclosed the post-forming
process in detail but from the correspondence and other materials
on record, it cannot be conceived that the authorities were not
aware of the facts as, we gather from the materials on record,
admittedly, samples were collected by the Department and even
after the samples were collected and inspected, classification as
supplied by the appellant in respect of the products in question
was approved by them.
Further more, it is also evident from the record that the
flow-chart of manufacturing process which was submitted to the
Superintendent of Central Excise, Rampur on 17.5.1990 clearly
mentioned the fact of post forming process on the rubber [See
page 15 of the Order of CEGAT]. The CEGAT in its order has
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also recognized the fact of collection of some relevant samples
by the excise authorities on 25.9.1985 and 22.1.1988. [See
paragraphs 7.1 & Page 14 of the Order of CEGAT].
In this view of the matter, we are unable to persuade
ourselves to agree with the finding of the CEGAT as admittedly,
the products of the appellant were inspected from time to time
and the department was aware of the manufacturing process of
the products although the appellant might not have disclosed the
post forming process in detail.
In Tata Iron & Steel Co. Ltd. vs. Union of India & Ors
[1988 (35) ELT 605 (SC)], this Court held that when the
classification list continued to have been approved regularly by
the department, it could not be said that the manufacturer was
guilty of "suppression of facts". As noted herein earlier, we have
also concluded that the classification lists supplied by the
appellant were duly approved from time to time regularly by the
excise authorities and only in the year 1995, the department
found that there was "suppression of facts" in the matter of post
forming manufacturing process of the products in question.
Further more, in view of our discussion made herein earlier, that
the department has had the opportunities to inspect the products
of the appellant from time to time and, in fact, had inspected the
products of the appellant. Classification lists supplied by the
appellant were duly approved and in view of the admitted fact
that the flow-chart of manufacturing process submitted to the
Superintendent of Central Excise on 17.5.1990 clearly
mentioned the fact of post-forming process on the rubber, the
finding on "suppression of facts" of the CEGAT cannot be
approved by us. This Court in the case of Pushpam
Pharmaceutical Company vs. Collector of Central Excise,
Bombay [1995 Supp (3) SCC 462], while dealing with the
meaning of the expression "suppression of facts" in proviso to
section 11A of the Act held that the term must be construed
strictly, it does not mean any omission and the act must be
deliberate and willful to evade payment of duty. The Court,
further, held : -
"In taxation, it ("suppression of facts") can have only
one meaning that the correct information was not
disclosed deliberately to escape payment of duty.
Where facts are known to both the parties the omission
by one to do what he might have done and not that he
must have done, does not render it suppression."
Relying on the aforesaid observations of this Court in the
case of Pushpam Pharmaceutical Co. Vs. Collector of Central
Excise, Bombay [1995 Suppl. (3) SCC 462], we find that
"suppression of facts" can have only one meaning that the
correct information was not disclosed deliberately to evade
payment of duty, when facts were known to both the parties, the
omission by one to do what he might have done not that he must
have done would not render it suppression. It is settled law that
mere failure to declare does not amount to willful suppression.
There must be some positive act from the side of the assessee to
find willful suppression. Therefore, in view of our findings made
herein above that there was no deliberate intention on the part of
the appellant not to disclose the correct information or to evade
payment of duty, it was not open to the Central Excise Officer to
proceed to recover duties in the manner indicated in proviso to
section 11A of the Act. We are, therefore, of the firm opinion
that where facts were known to both the parties, as in the instant
case, it was not open to the CEGAT to come to a conclusion that
the appellant was guilty of "suppression of facts". In Densons
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Pultretaknik vs. Collector of Central Excise [2003 (11) SCC
390], this Court held that mere classification under a different
sub-heading by the manufacturer cannot be said to be willful
misstatement or "suppression of facts". This view was also
reiterated by this Court in Collector of Central Excise, Baroda,
vs. LMP Precision Engg.Co.Ltd. [2004 (9) SCC 703]
However, in the case of LMP Precision Engg. Co. Ltd.
(supra), this Court came to the conclusion that the manufacturer
was guilty of "suppression of facts". In that decision,
manufacturer did not make any attempt to describe the products
while seeking an approval of classification list and in that
background of facts, it was held that it amounted to "suppression
of facts" and therefore, excise authorities were entitled to invoke
proviso to section 11A of the Act. It also appears from that
decision that this Court also held that if any classification was
due to mis-interpretation of the classification list, suppression of
facts could not be alleged. From this judgment, it is therefore
clear that since the excise authorities had collected samples of the
products manufactured by the appellant and inspected the
products and the relevant facts were very much in the knowledge
of the excise authorities and nothing could be shown by the
excise authorities that there was any deliberate attempt of non-
disclosure to escape duty, no claim as to "suppression of facts"
could be entertained for the purpose of invoking the extended
period of limitation within the meaning of proviso to section 11A
of the Act.
Similarly, in the case of Collector Central Excise,
Jamshedpur Vs. Dabur India Ltd., [2005 (121) ECR 129
(SC)], this Court held that the extended period of limitation was
not available to the Department as classification lists filed by the
Assessee were duly approved by the authorities from time to
time. In that decision this Court followed its earlier judgment in
O.K. Play (India) Ltd., vs. Collector of Central Excise, Delhi-
III, (Gurgaon) [2005 (66) RLT 657 (SC)], held that in cases
where classification lists filed by the Assessee were duly
approved, the extended period of limitation would not be
available to the Department.
For the reasons aforesaid, we are of the view that the
CEGAT was not justified in holding that the extended period of
limitation would be available to the Department for initiating the
recovery proceedings under section 11A of the Act on a finding
that there was suppression of facts by the appellant. Accordingly,
it was not open to the excise authorities to invoke proviso to
section 11A of the Act and therefore, the demand of the Revenue
must be restricted to six months prior to the issue of notice dated
19.10.1995 instead of five years. In view of this conclusion, it is
not necessary for us to consider the question of applicability of
the classification lists namely of 4008.29 and 4016.19 and the
question of MODVAT facilities. Accordingly, in our opinion,
CEGAT came to a wrong conclusion for wrong reasons and
therefore, we allow this appeal and set aside the judgment and
order of the CEGAT and restore the order of the Commissioner.
There will be no order as to costs in this appeal.