TMI Blog2016 (5) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... ositive other than mere inaction or failure on the part of the assessee or conscious or deliberate withholding of information when assessee knew otherwise, is required before it is saddled with the liability the extended period. In the case of Continental Foundation Joint Venture [2007 (8) TMI 11 - SUPREME COURT OF INDIA], Supreme Court went to the extent of ruling that mere omission to give correct information is not suppression of facts unless it was deliberate and that an incorrect statement cannot be equated with wilful mis-statement. In the case of Vivek Re-rolling Mills Vs. Collector [1995 (8) TMI 317 - SUPREME COURT], Supreme Court held that extended period is not invokable when assessee had reason to believe that its goods were exempted. Bombay High Court in the case of CC Vs. Star Entertainment [2015 (2) TMI 1050 - BOMBAY HIGH COURT] in effect held that extended period is not invokable in the case of unclear or doubtful legal position. In view of the above, the allegation of wilful mis-statement or suppression of facts cannot be sustained. It is found that the Show Cause Notice was issued on 22.03.2006 where the demand pertains to the period 2001-02 to 2003-04 and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was supplying its production to appellant No.1 and also to other parties in the market. As the Unit II of the appellant No.2 had resorted to under-valuation of its goods by suppressing the fact that the value of goods had not been determined at 115% or at 110% (w.e.f. 05.08.2003) of the cost of production, it had not properly calculated the aggregate clearances. Essentially, the impugned duty demand of ₹ 7,63,090/- along iwth interest and penalties was confirmed on the ground that the tread rubber cleared by the appellant No.2 was not valued at the rate of 115% (or 110% with effect from 05.07.2003) of the cost of production and when so done, the appellants exceeded the SSI exemption limit prescribed under Notification No.8/2003-CE, dated 01.03.2003. The Commissioner (Appeals) broadly and in principle agreed with the Order-in-Original though ordered some re-computation, etc. 3. The appellants have essentially contended as under:- (i) In the Show Cause Notice, the classification of tread rubber was shown under CTH 4006.10, whereas the Commissioner (Appeals) held it to be classifiable under CTH 40.08.22. (ii) They had all along maintained that tread rubber manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has claimed the classification of the tread rubber under sub heading 4008.21 which reads plates, blocks, sheets and strip used in the manufacture of sole heels or soles and heels combined for foot wear, chargeable to duty at Nil rate. As per the heading and sub heading notes, the tread rubber, by no stretch of imagination can be classified under sub heading 4008.21 which obviously covers vulcanized non-cellular rubber used for foot wear. The classification of Tread Rubber in terms of heading and sub heading note is very clear and the only discordant note is the last para of note 9 of Chapter 40, which reads as follows:- Sub-heading No.4008.21 shall also apply to plates, sheets, and strips, whether or not cut to shape and surface-worked or further worked so as to render them fit for resoling or repairing or retreading of rubber-tyres. 13. Looking at the history of classification of tread rubber, the impugned para of note 9 of Chapter 40 is an anachronism, which has outlived its purpose. In the year 1990-91, the sub-heading 4008.21 read as follows:- plates, sheets and strip, for resoling or repairing or re-treading rubber tyres. At that time, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtue of that the appellant cannot be said to have no justification to hold a bona fide belief that the impugned tread rubber could be legally classified under CTH 4008.21 which attracted nil rate of duty. In addition, we have already brought out as to how there was a difference of opinion between the departmental authorities issuing the Show Cause Notice and the Commissioner (Appeals) regarding classification of the tread rubber; Commissioner (Appeals) holding it to be classifiable under 4008.22 while Show Cause Notice mentioning its classification under 4006.10, which shows that there was ambiguity in this regard. 9. In the case of Uniworth Textiles Ltd. Vs. CCE, Raipur [2013 (288) ELT 161 (SC)] it was held that mere non-payment of duties is not equivalent to collusion or wilful mis-statement or suppression of facts, otherwise there would be no situation for which ordinary limitation period would apply. Inadvertent non-payment is to be met within the normal limitation period and the burden is on Revenue to prove allegations of wilful mis-statement. The onus is not on the assessee to prove its bona fides. Un the case of Chemphar Drugs Liniments [2002-TIOL-266-SC-CX], the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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