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2016 (5) TMI 779 - AT - Central ExciseDemand of duty - Seizure of 143 M.T. of calcite powder - Classifiable under C.T.H. 3824.90 leviable Central Excise to duty at the rate of 16% ad-valorem - Held that:- it has evident that the Commissioner (Appeals) has noted that the appellant is not seriously disputing the fact that the manufacturing process of their product involved apart from crushing, grinding other process as well such as roasting. The appellant contended that it did not do any roasting at all. The Commissioner (A)’s observation does not dispute that the appellant disputed the same though Commissioner (A) did not regard it to have been seriously disputed. So long as the roasting was disputed, the Commissioner (A) was not justified in assuming that there was roasting without corroborative evidence which doesn’t exist. Resultantly the impugned order becomes devoid of the adequate basis to sustain the classification under CTH 3824.90. Demand of duty - Willful misstatement/suppression of facts - Held that:- willful misstatement/ suppression of fact has been upheld by the Commissioner (Appeals) essentially on the ground that the appellant did not take registration and clear the goods without payment of duty. In case of CCE vs. Chemphar Drugs Liniments [1989 (2) TMI 116 - SUPREME COURT OF INDIA], the Supreme Court held that something positive other than mere inaction or failure on the assessee's part or conscious withholding of information when assessee knew otherwise is required for invoking extended period. In the case of Continental Foundation Joint Venture Vs CCE, Chandigarh-I [2007 (216) ELT 177 (SC)2007 (8) TMI 11 - SUPREME COURT OF INDIA], the Supreme Court went to the extent of saying that any incorrect statement by itself cannot be equated with willful mis-statement. Therefore, in the light of these judicial pronouncements, we are of the view that the allegation of willful misstatement / suppression of facts is also not sustainable in the present case. Consequently demand pertaining to the period beyond the normal period of one year will also be hit by time bar. - Decided in favour of appellant
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