TMI Blog1999 (7) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 lakhs has also been imposed under Rule 173Q. 2. Heard Shri R. Sashidharan, ld. Advocate assisted by Ms. L. Mythili, ld. Advocate for appellants and Shri S. Sankaravadivelu, ld. DR for Revenue. 3. Learned Advocates submit that though the show cause notice is dated 11-4-1991, the period covered by the demand is from 1986 to 31-3-1990 by invoking extended period under proviso to Section 11A and also Rule 9(2). Ld. Advocate submit that at the very outset the order impugned fails as it hit by time bar for the following reasons :- Vide their letter dated 5-10-1983 to the Asstt. Collector, Central Excise they had informed the commencement of manufacturing agricultural grades of Zinc Sulphate out of imported Zinc Ash. They submitted classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking to impose penalty which was adjudicated upon by Order-in-Original No. 31/90, dated 16-8-1990 by the jurisdictional Asstt. Collector, Central Excise who disallowed the exemption under the said notification but did not impose any penalty on the ground that all their classification lists seeking exemption had been approved earlier. 4. Ld. Advocate submits that upto this stage, there was no problem. However, on 11-4-1991, a subsequent show cause notice was issued by the Collector of Central Excise, Madras demanding the same duty of Rs. 25,39,125.38 as duty on Brass/Zinc/Copper ingots manufactured during the period noted above and the main allegation was that appellants had suppressed the fact of use of imported raw materials. This has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions, it was held by the Tribunal that when the same issue has earlier been taken-up by the department and show cause notice issued thereon and adjudicated upon, a subsequent show cause notice cannot be issued invoking extended period and such a demand issued would be time barred. 7. Ld. Advocate also cites the case-law of Kanchana Industries as in 1999 (108) E.L.T. 832 (T) wherein it was held that when the full description of goods was filed in the declaration, no mis-statement or mis-declaration or suppression of facts could be established as long as the declaration was correctly filed and that after filing of declaration, deciding upon the correct classification was the obligation of the Central Excise authorities. He also cites the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2), ld. Advocate submitted that once the classification lists are filed and goods are cleared in accordance of such approved classification list, there is no question of invocation of Rule 9(2) which concerns itself only with instances of clandestine removal where no procedure has been followed while removing the goods. In the instant case, evidence on record clearly shows that all prescribed procedures were followed and goods were removed on exemption as claimed in the approved classification list. This is well laid down law in terms of judgment in the case of ITC as in 1998 (104 ) E.L.T. 151 (Tribunal). 10. Ld. DR reiterates the order-in-original and submits that therein ld. Collector has relied upon the decision of the Hon ble Patna Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. (b) This was followed almost a year later by declaration filed by the appellants wherein again it was clearly brought out that Zinc unwrought was produced out of the imported Zinc Waste Even in the detailed process of manufacture declared, it was clearly mentioned that metal was recovered from the imported zinc ash on which the additional excise duty was paid. (c) We also note that these classification lists for the period 1986 onwards were approved by the jurisidictional Asstt. Collector, Central Excise after duly applying his mind to these facts. (d) Even after the approval of the said classification list, the department continued to harbour some doubts which led to a query from the Superintendent vide letter dated 15-4-1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1990 is clearly not sustainable as it is hit by limitation on a number of grounds. 12. Firstly, it is now well laid down in the case of Neyveli Lignite Corpn. Ltd. and Khatao Makanji Spg. Wvg. Co. (supra) that when a previous show cause notice has been adjudicated upon for the same issue, a subsequent show cause notice cannot invoke extended period. The facts of this case are exactly same and therefore we apply the ratio of these said decisions to the facts of this case. 13. Secondly, as has been noted above, all declarations were given in great details, classification lists filed and approved, subsequent queries replied by appellants and therefore there is no question of any misdeclaration with an intent to evade duty. Hence, on thes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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