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TMI Blog2022 (6) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... st facto verification of the premises and intended purpose for which application has been made. Vide letter dated 30.08.2007 the superintendent submitted the verification report to the Assistant Commissioner. The appellant filed ER-1 Return on 27.02.2008 for the quarter ending 21.12.2007. The appellant submitted a letter dated 28.08.2008 in response to the letter dated 18.02.2008 in which details of sales for the years prior to the registration were once again submitted. In November 2008, the audit was conducted by the Central Excise officers of the department. On 18.03.2009 the statement of the appellant was recorded by the officers of the department and thereafter the SCN dated 06.04.2009 was issued inter-alia raising demand of duty for the period 15.04.2004 to February 2008. In the SCN it was proposed to deny the exemption notification No 06/2002- CE dated 01.03.2002. Vide Order in Original dated 31.07.2010 proposals made in the SCN were confirmed, against which the appellant filed the appeal before this tribunal. The Tribunal vide order dated 06.09.2019 remanded the matter with the direction to consider the matter on limitation in view of the verification report of the Superint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant after obtaining registration had cleared the goods on payment of applicable duty in terms of Notification No. 06/2007-CE dated 01.03.2007 and filed ER-1 return. The appellant held a bona fide belief that the machines manufactured by the appellant were covered under the said notification and were exempt from Central Excise duty for the period 15.04.2004 to 12.08.2007 and the same were leviable to concessional rate of duty thereafter. 2.4 He submits that the bona fide view of the appellant was also the view of the department hence, there was no wilful mis- declaration or suppression of facts, it cannot be alleged that there was malafide on the part of appellant in not paying duty, consequently, the larger period of limitation cannot apply. 2.5 He submits that on identical issue, the Hon'ble tribunal in the case of Accurate Trans Heat Pvt Ltd Vs. Commissioner of Central Excise Surat- 2018 (7) TMI 973- CESTAT AHMEDABAD has held that where there is no evidence of mis-declaration or suppression of facts or intention to evade payment of duty, demand of duty invoking extended period of limitation cannot be sustained. He also placed reliance on the judgment of Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing the exemption notification No. 06/07-CE dated 01.03.2007, the appellant's submission is that there is no suppression of fact. Hence, the extended period of will not apply. We are of the view that since this vital letter dated 30.08.2007 was not dealt with by the lower authorities, entire matter on limitation needs to be reconsidered by the adjudicating authority. Accordingly, we set aside the impugned order and remand the matter to the Adjudicating Authority for passing a fresh order. The appeal is allowed by way of remand to the Adjudicating Authority." From the above observation in the remand proceeding, the adjudicating authority was to decide the invocation of larger period of demand considering the verification report given by the Range Superintendent. We find that the case on the merit was that the appellant was manufacturing and clearing the machine declaring the same as "Relax Drum Washer machine" under the belief that the same is covered under exemption Notification No 06/2006-CE under the description of "Relax Conveyer drying machine" 4.1 As regard the appellant's belief whether it is the bona fide or otherwise it is observed that it is not only the appellant bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been filed by M/s Accurate Trans Heat Pvt Ltd and Shn Re Derger against order of Commissioner confirming the demand of Central Excise duty on Drum washer machine/relax drum machine by denying exemption Notification No 6/2002-CE dated 1.3.2002 and Notification No 6/2006-CE dated 1.3.2006, interest and imposition of penalty 2. Learned Counsel for the appellant pointed out that the appellants are engaged in manufacture of Drum washer machine/relax drum machine and claimed Nil rate of duty under Notification No 6/2002 date 1.3 2002 Sr No 193 and Sr No. 5 of List 6 Sr No 193 of the Notification exempts machine ore equipment specified in List 6 of the said notification from full Central Excise duty. Sr. No 5 of the said List read as under "5 Relax drum/conveyer drying machine (1) Drying range. (ii) Float aryer, (ii) Loop dryer. (iv) Drum dryer, (v) Jet dryer, (vi) Rapid dryer" 2.1 He pointed out that subsequently vide Notification No. 6/2006, the said exemption was continued. The said exemption was withdrawn and duty of 8% imposed by virtue of Notification No. 8/2007-CE dated 13.2007 when the appellants started paying duty Learned Counsel claimed that the product manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de payment of duty 5. The appeals are consequently allowed on limitation.'' 4.3 In view of the above judgment coupled with the particular facts of the present case there is no doubt in our mind to hold that there is no suppression of fact with intent to evade payment of duty on the part of the appellant. In the present case the demand for the period 15.04.2004 to February 2008 was raised by the Show cause notice dated 06.04.2009 hence the entire demand is prior to normal period of one year, therefore the same is hit by the limitation. Accordingly we hold that the demand raised in the SCN and confirmed by the Adjudicating Authority is not sustainable being time barred. 4.4 As regard the reliance placed by the Learned AR on the judgments , on going through such judgments we find that on the face of the verification carried out by the Superintendent, the facts of those cases are different from the facts of the present case. Therefore the ratio of the judgments relied upon by the Learned AR cannot be made applicable to the facts of the present case. Moreover, the issue of time bar being a matter of fact, the fact of each case vary from one to another. 5. As per our above discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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