TMI Blog2016 (5) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments on this issue has to be determined in the context of the facts of each case. In case of CCE Vs. Chemphar Drugs Liniments [1989 (2) TMI 116 - SUPREME COURT OF INDIA ], the Supreme Court held that “something positive other than mere inaction or failure on the assessee’s part or conscious withholding of information when assessee knew otherwise is required for invoking extended period”. In the light of the foregoing analysis, the allegation of willful misstatement/ suppression of facts is not sustainable against the respondent. Consequently, we hold that the Commissioner was justified in dropping the impugned demand as time barred. - Decided in favour of assessee. - Excise Appeal No. E/545/2007-Ex[DB] - - - Dated:- 22-4-2016 - MR. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for normal period does not affect the nature of suppression etc. for the earlier period and for that i.e. for the earlier period, SCN invoking the extended period can be issued. 4. Per contra, the Ld. Advocate for the respondent pleaded that there was absolutely no willful misstatement/ suppression of facts in this case inasmuch as the Respondent had clearly brought to the notice of Revenue vide its letters dated 20.07.1999 and 20.09.1999 intimating that it was bringing pump from outside and the same would be placed in single carton for assembly with Honda Engine at the dealers premises for ultimate use in the manufacture of pump sets under the provisions of interpretative Rule 2(a) of the Central Excise Tariff Act and the payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under in the impugned order: As regards the claim of time bar in respect of demand of ₹ 1,59,78,303/-, it has been contended by M/s HSPPL that on similar issue SCN No. IV-CE(9)A.E./M-II/02/033993 dated 02.05.2003 was issued. M/s HSPPL has claimed that since the same issue was well within the knowledge of the department as early as on 02.05.2003, issuance of SCN on the same issue afresh on 29.09.2004 after a lapse of more than one year makes the matter time bar. I find that facts as narrated above by M/s HSPPL above are correct as per available records. The party s contention, regarding time bar is therefore admitted with regards the said demand only. Accordingly, the SCN dated 29.09.2004 for the period September 1999 to Feb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fabric. From the Tariff entry it is very clear that under chapter heading 5903 the coated fabric of base fabric of cotton of chapter 52 is classifiable under 5903.11 or 5903.19. Coated fabric made of base fabric by Chapter 54 or Chapter 55 are classifiable under chapter sub heading 5903.21 or 5903.25 and other coated fabric are classifiable under Chapter sub heading 5903.91 or 5903.99. In the present case since the coated fabric manufactured by the appellant is not made of base fabric of chapter 52, 54 or 55 therefore is not classifiable either under chapter sub heading 5903.19 or 5903.29. In view of this undisputed fact the product in question is correctly classifiable under chapter 5903.99 and therefore correctly extended the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 52, if not already paid . From this mention it is clear that department is under belief that base fabric used by the appellant is falling under chapter 52 whereas the appellant used the base fabric which is falling under Chapter 60, therefore this is a clear mis-declaration of the fact. As regard submission of Ld. Counsel that stock was verified physically by the departmental officer, we are of the view that though the stock of the goods was verified but from the stock verification officer cannot ascertain whether the base fabric used in the product is falling under Chapter 52 or Chapter 60. Therefore we do not agree with the submission of the Ld. Counsel on this count. We therefore of the view that there is clear suppression of facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment vide letter dated 20.07.1999 and 20.09.1999 about the clearance of the impugned goods by them by classifying them under 84.13 and paying duty as per the relevant notification. These two letters are reproduced below. Both these letters have the initials to the effect of having been received by the addressee. Indeed, the receipt of these letters is not disputed by Revenue. There remains no doubt after the perusal of the aforesaid letters that there was absolutely no suppression/ willful misstatement on the part of the respondent in this case. Further, that there was ambiguity with regard to the classification of PD pump sets becomes evident when one peruses the CBEC Circular No. 224/58/96 dated 26.06.1996-Cx. which is reproduced be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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