TMI Blog2012 (12) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... he process undertaken by the appellant amounts to manufacture and they had suppressed the relevant facts from the department. On the basis of the same facts the department has issued show cause notice for subsequent period from July 2008 to 4.12.2008 on 6.7.2010 again invoking the extended period, which in view of the Apex Court's judgement in the case of Nizam Sugar Factory (2006 (4) TMI 127 - SUPREME COURT OF INDIA) is not permissible - in favour of assessee. - 3004 of 2011 - Final Order No. A/744/2012-EX(BR) - Dated:- 27-6-2012 - Ajit Bharihoke and Rakesh Kumar, JJ. R.K. Hasija, Adv. for the Appellant R.K. Verma, AR for the Respondent Rakesh Kumar, Technical Member 1. The appellant is engaged in the business of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the Apex Court's judgment in the case of Nizam Sugar Factory vs. CCE, AP reported in 2006 (197) ELT 465 (SC) when a show cause notice invoking extended period has been issued for certain period on the basis of certain set of facts, for subsequent period, the department cannot invoke extended period for demand of duty on the basis of the same set of facts and in this case, therefore, only normal limitation period would be available, and that the duty demand is time barred, and hence the impugned order is not sustainable. 6. Shri R.K. Verma, ld. AR for the respondent, defended the impugned order reiterating the finding of the Commissioner and pleaded that during the period of dispute the appellant had not obtained central excise regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee cannot be issued as the facts were already in the knowledge of the department. It was observed in para 14 as follows: "14. We have indicated above the facts which make it clear that the question whether M/s. Pharmachem Distributors was a related person has been the subject-matter of consideration of the Excise authorities at different stages, when the classification was filed, when the first show cause notice was issued in 1985 and also at the stage when the second and the third show cause notices were issued in 1988. At all these stages, the necessary material was before the authorities. They had then taken the view that M/s. Pharmachem Distributors was not a related person. If the authorities came to the conclusion su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It has been held that in such circumstances, it could not be said that there was any wilful suppression or mis-statement and that therefore, the extended period under Section 11A could not be invoked." Similarly, this judgment was again followed in the case of Hyderabad Polymers (P) Ltd. v. Commissioner of Central Excise, Hyderabad reported in [2004 (166) E.L.T. 151 (S.C.)]. It was observed in para 6: "..........On the ratio laid down in this judgment it must be held that once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there is any suppression. The extended period of limitation would thus not be available. We are unable to accept the submission that earlier Show Cause No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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