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TMI Blog1999 (9) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the bars, to the benefit of Notification No. 202/88-C.E., dated 20-5-1988. Following the Tribunal's decision in the case of Calcutta Steel Indus. v. CCE, [1991 (54) E.L.T. 90 (T)], the Collector of Central Excise (Appeals) had observed that as the tubes and pipes were manufactured out of the bars and not out of the flats, the benefit of exemption against the aforesaid notification as provided against serial No. 3 of the table annexed to that notification was not admissible to the appellants. 2. Shri K. Kumar, Advocate, appearing for all the four appellants, when the matter was called on 28-7-1999, submitted that the appellants were not challenging the classification of their inputs as bars and were thus agreeing to the above common order-in-appeal passed by the Collector of Central Excise (Appeals) and that their product tubes and pipes of steel were not eligible for the benefit of exemption under Notification No. 202/88-C.E. 3. The other four appeals arising out of the common order-in-original dated 13-7-1994 passed by the Collector of Central Excise, Meerut, relates to the consequential demand of central excise duty and imposition of penalties. Shri K. Kumar, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no excise records were maintained. The filing of the declarations was for availing exemption from the operation of the Licensing Control and no classification was sought and no details had been submitted as on what ground they were not required to pay any central excise duty. It was alleged in the show cause notices that the inputs were not correctly described in their declarations for claiming exemption from the operation of Licensing Control and it was further alleged that it was a case of wilful mis-statement and suppression of vital material facts with intent to evade the payment of central excise duty. The ground on which it was alleged that the appellants had suppressed the facts were enumerated in detail in the show cause notices. The appellants had admitted that they had not correctly declared the inputs; but had pleaded that the Department was aware of the facts. It was incumbent on the part of the assessees that the facts relevant for assessment and application of exemption were correctly declared, but it was not done so in the present proceedings. The responsibility of correct declaration could not be shifted to the Department. This issue of limitation had been discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en thickness of the inputs was not declared while thickness of the inputs was one of the deciding factors for availing exemption. In the above premises could be concluded that the Noticees had wilfully suppressed the facts and made mis-statement by declaring their inputs incorrectly. Mere filing declaration does not prove that every fact was in the knowledge of the Department. What was important to submit completely filled in declarations. I therefore, hold that suppression of the fact on the part of the Noticees proved and therefore, invocation of the longer period is valid. As regards Noticee No. 5, the contention of theirs that they had informed the Department firstly regarding manufacturing of pipes and tubes so there was not suppression on their part is not tenable. Perusal of the Noticee's letter revealed that the letter was for getting certificate to the effect that their products i.e. tubes and pipes were exempt from payment of duty. No details regarding inputs used in the manufacture was given in the letter. Neither the declaration under proper proforma was filed by the Noticee No. 5. Therefore, there is evidence that the Noticee No. 5 had suppressed the facts. Contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of mis-declaration of the goods received and used in the manufacture of final products. While the final products were correctly described what was mis-stated was the description of the inputs. What was received were the bars, but what was described and declared was the flats. The adjudicating authority had rightly observed that the payment of duty at higher rate could not make the inputs as flats. All along, the understanding of the input manufacturers was that their products were not flats but bars. This position has also been accepted by the appellants before us. 7. It is also pertinent to note that the input manufacturers were paying duty under protest. 8. Whether the duty could be demanded for the extended period is always a question of fact. In the case of CCE v. Chemphar Drugs & Liniments [1989 (40) E.L.T. 276 (S.C.)], the Supreme Court had observed that "whether in a particular set of facts and circumstances there was any fraud or collusion or wilful mis-statement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case." (para 8). In the case of Marco Textiles v. UOI [19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation was not invokable. In the case of Shakti Iron & Steel Co. Ltd. v. CCE, Patna [1999 (107) E.L.T. 415 (Tribunal)], it is observed that in a case of confusion with regard to classification of the final products, the claim of bona fide belief of the assessee was acceptable and the larger period of limitation was not invokable. In the case of Bihar Foundry & Engg. Works v. CCE, Patna [1999 (107) E.L.T. 779 (Tribunal)], the appellants were under a bona fide belief that it was not required to take out a central excise licence in view of long standing practice of classification of particular goods. It was in such circumstances that the Tribunal observed that the extended period of limitation was not invokable. In the case of TIL Ltd. v. CCE, Calcutta-II [1999 (107) E.L.T. 816 (Tribunal)], the appellants' firm had disclosed the full description in the classification list and the proper officer had not asked for the manufacturing process before granting approval of the classification list. It was with such facts and circumstances that the Tribunal observed that the demand was barred by limitation. In the case of Oudh Sugar Mills Ltd. v. CCE, Kanpur [1999 (108) E.L.T. 779 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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