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2022 (4) TMI 252 - AT - Central ExciseClandestine Removal - cigarettes removed for testing within the factory - demand for the period from March 1973 to February 1983 - extended period of limitation - HELD THAT:- For the period from March 1983 to June 1985, it is found that the cigarettes were cleared on the basis of “adjusted sale price” as per Notification No. 36/83-CE dated 1.3.1983 and thereafter for the period March 1987 upto February 1987 as per Notification No. 201/85-CE dated 2.9.1985 again on “adjusted sale price”. The manner in which duties are to be levied and realised as per the said notification leaves no scope for any provisional assessments of the cigarettes cleared. The contention of the Appellant is agreed upon that the clearances of cigarettes during this period were on final assessment basis only - in respect of the entire period from July 1985 to December 1990 there was no scope of any provisional assessment in effecting clearance of cigarettes removed. All clearances during this period was on final assessment basis. In the instant case at all material times cigarettes were under physical control system. All samples were drawn during the manufacturing process and moved to the laboratory situated within the premises of the bonded factory of ITC which is under the physical control of the Central Excise authorities since May 1979. The movement of cigarette samples to the laboratory inside the factory was undertaken as a part of regular process of the manufacturing cigarettes and there is no material disclosed that there was attempt on the part of the appellant to conceal such movement or concealment of any material fact with regard to the removal of samples of cigarettes. Extended period of limitation - HELD THAT:- The demand of duty in respect of cigarettes cleared for testing purposes for the period March 1, 1983 to December 27, 1990 is sustainable only in respect of normal period of 6 months as contained in Section 11A(1) of the Central Excise Act, 1944 during the material period. The extended period of limitation contained in the Proviso to Section 11A(1) of the Act is inapplicable. Consequently, the demands beyond the period of 6 months from the respective dates of issuance of the SCNs in respect of cigarettes cleared during this period are barred by limitation and hence cannot be sustained. The instant appeal is allowed by way of remand to the Adjudicating Authority, to be decided after taking into account the observations and findings and upon extending an opportunity of personal hearing to the Appellant.
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