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TMI Blog2025 (2) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... r Central Excise Tariff Sub-Heading (CETSH) 49090090 of first schedule of Central Excise Tariff Act, 1985 and cleared the same as printed sheets. They were also manufacturing 'printed fabric folder' and classifying them under CETSH 49011020 resulting in the clearance of the product without payment of duty as the CETSH adopted by the appellant attracted 'Nil' tariff rate. Thereafter, on verification of the products it is observed that printed 'Collar Band' and 'Chest Band' are manufactured by the appellant by printing on the broad sheets with the brand name or description of the apparel and other information on it using a 4(four) or 8(eight) colour printing machine and laminate the same. Alleging that the prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts were brought out only during audit and fact being so, no allegation can be made that the appellant had deliberately suppressed the fact. Learned counsel draws our attention to the judgments of the Hon'ble Supreme Court in the matter of M/s. Pushpam Pharmaceutical Company Vs. CCE, Bombay reported in -1995 (78) ELT 401 (SC) wherein it is held as follows:- "Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; and 'Swatch Cards' classified by the appellant under CETSH 4901 1020 and it was re-classified by the department as falling under CETSH 4820 3000, Learned counsel submits that a plain reading of the heading CETH 4820 clearly indicates that the goods covered there under are all items of stationery as known in the market and sub-heading 48203000 refers to 'Binders (other than book covers), folders and file covers'. It is submitted that the 'folders' in this heading covers only such folders that are ordinarily available in the stationery shops and not all products that may be called as 'folders' with a certain prefix by the manufacturer for ease of his reference. As described supra, the impugned goods are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the item folders are classified under heading 48185090 or 48203000 the item is chargeable to duty and remains in Chapter 48 and not in 49. 6. Heard both sides and perused the records. 7. We find that as regarding classification, 'Collar Band, and 'Chest Band' manufactured by the appellant they are rightly classified by the respondent under CETSH 48185000, since the CETSH 48185000 specifically reads 'articles of apparel and clothing accessories' and are chargeable to duty at the rate 16% at the relevant time. However, as regarding the 'printed fabric folder' and 'swatch cards', we find that the Heading 4820 clearly indicates that the goods covered therein are all items of stationary and as known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und for the purpose of invoking penal provisions. Similarly, in the case of Densons Pultretaknik Vs. Commissioner of Central Excise reported in 2003 (155) E.L.T. 211 (S.C.) it is held that for invoking extended period of limitation under the said provision duty should not have been paid, short-levied or short-paid by suppression of fact or in contravention of any provision or rules but there should be wilful suppression. In the instant case, the show cause notice is issued on 20.01.2011 covering the period between 4/2006 and 12/2008. Thus, the entire period covered in the show cause notice is beyond the period of one year and hence the demand is not sustainable in law. Therefore, the Appellants cannot be charged with willful mis-statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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