TMI Blog2006 (11) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... s imposed upon them by holding the same as barred by limitation, though on merits, he has held against the respondents. 2. After hearing both the sides, it is seen that show cause notice dated 8-4-99 raising demands of duty against the respondents in respect of P.D. Pumps manufactured and cleared by them during the period 1994 to 1998 on the alleged ground that they were using the brand name Rotodel belonging to DEL and as such, were not entitled to the benefit of small scale notification exemption. The notice invoked the longer period of limitation. The same was adjudicated by the Additional commissioner confirming demand of duties and imposing penalties. On appeal against the same, Commissioner (Appeals) upheld the demand on merits b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices were issued while extending free replacements, as admitted by Shri Niranjan Deliwala. Upon perusing the fine print of show cause notice, it is seen that both FSI and ROTODEL are charged with suppressing the fact of using others brand name in their invoices, statutory returns as well as classification declarations filed under Rule 173B of Central Excise Rules, 1944. It is however amazing to note that the entire demand is worked out by resorting to the copies of invoices that were submitted by the appellants along with their RT-12 returns from time to time. That such RT-12 returns were positively filed is evident from the dated acknowledgements and concerned Range authorities. It can be seen from these invoices that they were issued i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f audit groups who, as can be gathered form their endorsements, conducted test checks of these units on a periodical basis. On account of all these reasons, there remains no vindication for application of the proviso to section 11A that permits demand of duty over and above the normal period of six months. The impugned order does not explain how department could still remain oblivious of the glaring evidences which the aforesaid tools display and despite the fact that department come across them on more than occasions, the lower authority found it apt to saddle the appellants with the extended liability. In the result, I hold that demand on this count is clearly hit by limitation and turns infructuous accordingly. 4. As against above, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect. Had there been any mala fide on their part, they would not have reflected the fact of use of brand name in their invoices, which they have submitted to the department. It is well stated law that it is not only the fact of mis-statement simplication which can be made the basis for invocation of longer period of limitation but the mis-statement must be with intention to evade payment of duty. If there would have been any intention on part of the assessee to suppress the use of brand name on their products, they would not have reflected the same in the invoices filed with the department. As such, the element of mala fide intention is definitely missing. Apart from above, all the statutory records including the classification li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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