TMI Blog2013 (4) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... the Excise authorities resting on the belief that the paper and plastic wastes in question were not excisable items, by contending that they were not marketable. There was neither a willful misstatement nor suppression of facts with intent to evade payment of duty. The demand was, therefore, clearly time barred under section 11A(1) of the Act. - Decided against the revenue. - TAX APPEAL No. 749 of 2010 - - - Dated:- 25-6-2012 - MR. V. M. SAHAI AND MR. N.V. ANJARIA JJ. Appearance: MR GAURANG H BHATT for Appellant(s): 1, ORAL JUDGMENT (Per: HONOURABLE MR.JUSTICE N.V. ANJARIA) The present appeal preferred by the Department is directed against order dated 26th August 2009 passed by the Custom, Excise and Service Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrapper under the various brands. In that process of packing, some paper turnings used to generate, which were collected and stocked by the assessee. Moreover, in the process of pouch packing, certain plastic waste was also generated. These wastes were classifiable under the relevant entry of the Chapter of the Central Excise Tariff Act, 1985. The paper turnings and plastic wastes attracted duty at the applicable tariff rate, according to the case of the department. 3.1 The Addl. Commissioner, Central Excise, issued show cause notice dated 21.02.2001 on the ground that the paper waste and the plastic waste generated during the process of packing were sold in clandestine manner and without filing the necessary classification declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid two issues involved in the matter. 5. As far as the issue of limitation is concerned, provisions of section 11A come into play. The section relates to recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Subsection (1) thereof inter alia says that wherein duty of excise has not been levied or paid etc., a Central Excise Officer may within one year from the relevant date serve the notice on the persons chargeable with the duty which has not been levied, requiring him to show cause. The Proviso to section says that where any duty of excise has not been levied or paid etc. by reasons of fraud, collusion or any willful misstatement or suppression of facts or contravention of any of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory was not being brought to the knowledge of the Revenue, the same cannot be on the basis of any malafide. As such we are of the view that the demand is also hit by the bar of limitation. 7. Whether the grounds of willful misstatement or suppression of facts etc. with an intention to evade duty for the purpose of invocation of extended period under the Proviso exist or not, is a question dependent on facts. In the instant case, it was the contention of the respondent assessee before the lower authorities that the plastic and paper waste were not marketable and that merely on the count that the goods are specified under the Central Excise Tariffs under particular heading or merely because somebody buys the waste or that they were sold, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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