TMI Blog1997 (11) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... n K. Dhar, Member (T)]. Appellants are engaged in the manufacture of Steam Boilers which were classified under Tariff Item 68 upto 1-3-1986 and thereafter under chapter heading 84 of the new Tariff. Consequent on investigation carried out by the Central Excise Officers it was held; that the appellants have evaded duty to the extent of Rs. 12,90,145.59 on the ground that M/s. Boiler Tech Engg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants the ld. Counsel submits that he does not wish to go into the merits of the case as such but would confine his arguments only to the question of limitation and imposition of penalty. He drew attention to the Para 3 of the Collector s order at internal page 18 of the order according to which Collector himself held that appellants had no intention to evade duty and it was their understandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve heard both sides. We are extracting below paragraph 3 of the observation at internal page 18 of the Collector s order. From discussion and evidence on record no intention of evasion of duty is proved. It is their understanding that by arrangements made by them separate exemption can be availed. I, therefore, taken a lenient view in imposing penalty. Ld. Collector himself has held that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cur to enable the Excise Officer to proceed under his proviso and invoke the exceptional power. Since the proviso extends; the period of limitation from six months to five years it has to be construed strictly. The initial burden is on the Department to prove that the situation visualised by the proviso existed. But once the Department is able to bring on record material to show that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of this we hold that the demand issued on 2-8-1987 for the period 1984-85 and 1985-86 upto September, 1985 is clearly time barred. Since the extended period is not sustainable for demand penalty is also not sustainable [See Apex Court judgment in case of CCE., v. H.M.M. Ltd. -1995 (76) E.L.T. 497 (S.C.)]. In the result, without going into the merits of the case, we allow the appeal on limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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