TMI Blog2014 (4) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... ents to ‘Bleached Mosquito Net Fabrics’ makes the intention of the main appellant clear for evading Central Excise Duty. This is further fortified by the fact that main appellant was also paying central Excise duty with respect to certain clearances of ‘Bleached Leno Gauze’ fabrics under 58.03. Such a mis-declaration on the part of the appellant could not be detected from the classification declarations, copies of invoices and monthly returns filed by the appellant in compliance to the provisions of central excise law and procedures. We, therefore, hold that this is clear case of intentional evasion of duty on the part of the appellant willfully mistaking/suppressing the facts, warranting recovery of duty under proviso to sub-section (1) of section 11A of the Central Excise Act, 1944. Therefore, the demand of duty is not time barred and extended period has been correctly invoked in these proceedings while confirming the demand - Decided against the assessee. - Appeal No. : E/1622, 1623, 1624/2005 - ORDER No. A/10451-10453/2014 - Dated:- 27-3-2014 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri P M Dave (Adv.) For the Respondent : Shri M Kutty (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hah, Managing Director of the appellant company, being party to the conspiracy and designer for the entire scheme of evasion so perpetuated by him. The Commissioner, however, arrived at the conclusion that the Stiffened Fabrics, manufactured by the appellant, did not fall under Chapter Heading No. 59.01 as initially alleged by the Revenue, and that there was no evasion of duty on these goods. 2.2. During the course of investigations, some quantity of Bleached Leno Gauze Fabrics , allegedly falling under Chapter Heading No. 58.03, was also seized at the factory premises of M/s Gujrat Healthcare, Ahmedabad (one of the customers of the main appellant), and some quantity of Stiffened Fabrics , allegedly falling under Chapter Heading No. 59.01, was seized in the factory premises of the main appellant. A separate show cause notice, issued by the Revenue to dispose of the seizure portion of the goods, was adjudicated by the Additional Commissioner, Central Excise, Ahmedabad-I vide his Order in Original No. 168/ ADDL Commissioner/ 2001 dated 28.11.2001 confirming the classification of the said goods as alleged by the investigators, confiscating the seized goods with option to redeem t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.04.1999, addressed by the appellant company to the Chairman, Central Board of Excise and Customs, New Delhi and copies endorsed to the Commissioner (TRU), Commissioner, Ahmedabad and Assistant Commissioner, Division II, Ahmedabad requesting the Department to include Heading No. 58.03 in the compounded levy scheme written by the appellant. The issue was also taken up by the appellant company with the Hon ble Union Finance Minister vide letter dated 18.05.1999. He argued that even the Commissioner (Appeals) had held in their own case that the Bleached Leno Gauze Fabric was not classifiable under Chapter Heading No. 58.03 as understood by the appellants. In such cases, Learned Advocate argued that demand of duty could not be raised by invoking extended period of time limitation under proviso to Section 11A of the Central Excise Act 1944. In support of this argument he produced a copy of Final Order No. A/ 469/ WZB/ AHD/ 2011 dated 23.02.2011, passed by this Tribunal in the matter of CCE, Ahmedabad Vs. Nita Textile and Industries, setting aside the demand of duty beyond normal period by holding in Para 16 that once the Commissioner, who is considered to be an excise expert, himse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly held to be classifiable under Chapter heading 58.03 of the Central Excise Tariff Act, 1985. Therefore, the main appellant was not eligible to clear said Bleached Leno Gauze Fabric under compounded levy scheme as held by the adjudicating authority. 5.3. As regards the second issue on applicability of extended period of time limitation under proviso to section 11A(l) of the Central Excise Act, 1944 to the facts and circumstances of the case, we find that on the date (8.11.2000) of first visit of the Preventive Officers to the appellant s factory, the main appellant had no doubt about the classification of their product Bleached Leno Gauze Fabrics under Chapter Heading No. 58.03, and duty was being paid by them on advalorem basis on certain clearances. It was only before the Commissioner (Appeals) the appellant agitated that their product was not classifiable under Chapter Heading No. 58.03, and the Commissioner (Appeals) held in respect of seizure portion of the instant case vide his Order in Appeal No. 126 to 129/ 2004 dated 16.06.2004 that cotton bleached mosquito net fabric described by the department as leno gauze fabrics manufactured by the appellant was not classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scription was mentioned as Bleached Mosquito Net Fabrics , was found. On being asked Shri Anilbhai stated that these fabrics were Bleached Leno Gauze Fabrics. Hence the said quantity of goods were placed under seizure, as the same were cleared without payment of duty under advalorem basis and also drawn four representative samples of the same for further examination. 5. During the course of panchnama proceedings and in his statement dt 10.11.2000, Shri Anilbhai V Shah, Partner of M/s Gujarat Healthcare, Ahmedabad stated that they used to place orders with the assess for purchase of Bleached Leno Gauze Fabrics for further use in Plaster of Paris bandages, against which the said goods were supplied by the assessee, under Central Excise Invoices, mentioning the description of goods as Bleached Mosquito Net Fabrics . 5.4 The above evidences collected by the investigation make it evident that main appellant was changing the description of bleached fabrics as Bleached Mosquito Net Fabrics when orders were placed on them by the buyers for Bleached Leno Gauze Fabric Even if there was a confusion in the mind of the main appellant regarding classification of Leno Gauze Fabrics ..... X X X X Extracts X X X X X X X X Extracts X X X X
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