TMI Blog2009 (10) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice. Thus, the proviso to Section 11A(1) of the Act was wrongly applied to this case. The entire demand of duty is hit by limitation. The impugned order is set aside and these appeals are allowed. - E/417-418/2007 - A/646-647/2009-WZB/C-IV/SMB - Dated:- 23-10-2009 - Shri P.G. Chacko, Member (J) Ms. Aparna Hirndagi, Advocate, for the Appellant. Shri P.K. Agarwal , SDR, for the Respondent. [Order]. - In adjudication of a show-cause notice dated 30-11-2004, the original authority confirmed a demand of duty of Rs. 3,57,586/- against M/s. Ashpra Textiles Pvt. Ltd. (hereinafter referred to as 'the assessee') for the period from 1-4-2002 to 10-9-2003 under the first proviso to Section 11A(1) of the Central Excise Act and ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Chennai). Learned Counsel submits that the assessee had believed in a bona fide manner that they were eligible for exemption from payment of duty on the goods in question under SSI Notification No. 8/2002-C.E. In this connection, counsel refers to the SSI declaration dated 21-1-2003 filed by the SSI unit wherein the above exemption was claimed. According to learned Counsel, the above declaration filed by the assessee per se reflects their bona fide belief. It is argued that the extended period of limitation cannot be invoked under Section 11A of the Act where it is shown that the non-payment of duty was on account of bona fide belief that there was no liability to pay the duty. In this regard, counsel has claimed support from the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SDR, any belief without such evidence is a blind belief which cannot be qualified as bona fide. In this connection, learned SDR has relied on two decisions of this Tribunal : (a) Tanzeem Screenarts v. Commissioner - 2006 (196) E.L.T. 209 (Tri.-Mumbai); (b) Interscape v. Commissioner - 2006 (198) E.L.T. 275 (Tri.-Mumbai). SDR has also referred to Kores India Ltd. v. Commissioner - 2004 (174) E.L.T. 7 (S.C.) relied on by the Commissioner (Appeals). 4. I have given careful consideration to the submissions. It appears from the records that, prior to January, 2003, the manufacturing activity was carried out in the name and style of 'Ashpra Industries', a proprietary concern owned by Shri Ashok Jain. From January, 2003 it was being carried o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (No. 2) Rules, 2001; that the assessee had clandestinely manufactured and cleared the goods by not maintaining proper records, and that they had evaded payment of duty thereon. On this basis, the notice invoked the first proviso to Section 11A(1) of the Central Excise Act for recovery of the duty from the assessee. In the reply to the show-cause notice, the assessee submitted that they had not suppressed any facts inasmuch as the Department was all along aware of the manufacturing/clearing activity. It was also submitted that there was no wilful mis-statement or any intent to evade payment of duty. It was submitted that it was their bona fide belief that they were eligible for SSI exemption under the relevant Notification. However, no notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be found in the show-cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been noticed or that the assessee was guilty of wilful mis-statement or suppression of fact. In the absence of such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11A(1) of the Act." 6. In the instant case, there is no specific allegation of fraud, collusion, or willful mis-statement/suppression of facts or contravention of law with intent to evade payment of duty. It is true that the show-cause notice speaks of 'clandestine' manufacture and clearance of goods. The learned SDR has referred to the dictionary me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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