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2013 (2) TMI 677 - HC - Central ExciseDemand of differential duty - Penalty u/s 11AC - SSI Exemption - Invocation of extended period of limitation - Held that:- The goods have been supplied by IOC (from their Lube Blending Plant, Chennai and plants at Trombay and Vashi) in bulk and the repacked unit containers cleared to the IOC depots as per the instructions of IOC. The unit containers have been supplied by IOC itself along with the packing materials, viz., Cartons. Both the unit containers and the packing materials have the Logo/Emblem. The assessee has been engaged in the repacking of Coolants and brake fluids under Chapter 38 of Central Excise Tariff Act amounting to manufacture as per note 5 to Chapter 38 with effect from 1-3-1997 read with Section 2(f) of the Central Excise Act. As per Note 5 to Chapter 38, repacking of Servo Kool/Hydraulic Brake fluids in unit containers amounts to manufacturing with effect from 1-3-1997 and therefore the 1st respondent was liable to pay Central Excise duty on the repacked coolants and the brake fluids in unit containers are not eligible for SSI exemption. Within seven months from the date of Officers’ visit to the 1st respondent’s factory the assessee paid the duty. But it was only on 26-2-2002 the show cause notice was issued to the 1st respondent. It is the case of 1st respondent that such a demand of duty raised after 3˝ years after the Officers’ visit to the factory cannot be sustained in law and in the facts and circumstances of the case, no suppression can be alleged against them so as to invoke the extended period of limitation. - Tribunal pointed out that within seven months after the receipt of Central Excise Officers, the assessee paid the duty of ₹ 5,00,696/-. The Tribunal also pointed out that Central Excise Officers visited the assessee’s factory in July, 1998 and gathered all the material facts and even then show cause notice was issued 3˝ years later and the Tribunal recorded the factual finding that there was no suppression of fact. When the Tribunal has recorded factual finding that there was no suppression of fact to invoke the extended period of limitation under Section 11A of the Central Excise Act and when Tribunal has recorded such factual finding, there is no substantial question of law per se involved. - Tribunal has recorded the factual finding that there was no suppression of facts and as such no substantial question of law is involved in the appeal - Decided against Revenue.
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