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2003 (2) TMI 64 - SUPREME COURTWhether Dextrose in the formulation is pharmaceutical necessity? Whether it is therapeutically inert? Whether the CEGAT erred in confirming the order of the Collector, Central Excise invoking the proviso to sub-section (1) of Section 11-A of the Central Excise Act? Held that:- When the case was taken up on 23-1-2003, records were received in part from the Additional Commissioner (Legal), Chennai III, Commissionerate which did contain the documents called for. It was brought to our notice that the other records were sent to CEGAT and they had to be received from the CEGAT. The case was again adjourned. When the matter is taken up today, some records are received but the classification lists and the audit report, which were specifically called for, were not sent. In a matter like the one under consideration, it was the duty of the concerned authorities, particularly, the Commissioner/Collector, Central Excise, Madras to have pursued the matter diligently and placed the record before us to support the allegation in the show cause notice that there has been suppression of the fact and that dextrose was not mentioned in the classification list 7/82. In the absence of production of such record, the burden cast on the Revenue to establish suppression of fact is not discharged. Consequently, it will not only be unfair and unsafe but also illegal to infer that there was suppression of fact. For these reasons, we are unable to approve the view taken by the Collector as well as the CEGAT that there has been such a suppression of material fact. Unable to uphold the finding that proviso to Section 11-A (1) of the Central Excise Act is attracted. The order under challenge is set aside. The demand, insofar as it relates to the extended period, is also set aside. However, the authorities will be at liberty to raise a fresh demand of excise duty falling within the period of limitation under Section 11-A of the Act. Appeal allowed.
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