TMI Blog1993 (6) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts manufactured by it were classifiable under sub-heading No. 2804.60 and not under the residual item of Tariff. 4. On 19th March, 1986 the Excise authorities drew samples from the petitioners' product Lead Oxide Grey. The Chemical Examiner submitted a report to the effect that it was Lead Oxide (Lead Sub-Oxide). The petitioners thereafter wrote letters to the Ministry of Finance as well as to the Central Board of Excise and Customs contending that Lead Oxide Grey was classifiable only under sub-heading No. 2804.60. The Ministry of Finance wrote to the petitioners stating that necessary instruction had been issued to the Collector of Central Excise with regard to classification of the product. A trade notice was thereafter issued on 5-6-1986 to the effect inter alia that Lead Oxide Grey, which is Lead Sub-Oxide, falls for classification under sub-heading No. 2804.60. Because the petitioners had been paying excise duty under protest in respect of the product as claimed by the Excise authority, they filed an application for refund of Rs. 31,786/- being the difference between the excise duty claimed and the excise duty in fact payable on the product. The petitioners' claim was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Chemist, Central Revenue Chemical Laboratory, New Delhi. The Chief Chemist submitted a report on 16-8-1990 giving chemical components of lead oxide grey and stating that it was classifiable under Tariff Heading 3823.00 and not under 2824.00. The Board agreed with the view of the Chief Chemist and issued a clarification on 14-9-1990 to the effect that lead oxide grey was appropriately classifiable under sub-heading 3823.00 of the Tariff and not as lead oxide falling under 2824.00. On the basis of the Board's instructions the Additional Collector, Central Excise, issued a Trade Notice dated 16-10-1990 to the following effect :- "Doubt has been expressed whether Oxides of Lead viz. Lead Oxides Red, Lead Oxides Yellow and Lead Oxides Grey are appropriately classifiable under sub-heading 2804.60. It is clarified that the appropriate classification of the product 'Lead Oxide Grey' would be under sub-heading 3823.00 and not in sub-heading 2804.60." On 25-2-1991 the Assistant Collector purported to dispose of the proceedings initiated on the basis of the impugned Notice dated 2-5-1989 as well as the Show Cause Notice dated 17-3-1989. This order has also been impugned in this pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed under Section 11A of the Central Excises and Salt Act, 1944 (hereinafter referred to as "the said Act"). Section 11A of the said Act provides for a Show Cause Notice to be issued within 6 months from the relevant date when show cause is for the levy of Duty which has not been paid or has been short levied or short paid or erroneously refunded. The relevant date has been defined in Section 11(3)(ii) of the said Act. It is not in dispute in this case that the Show Cause Notice was, in fact, issued beyond the period of 6 months from the relevant date in this case. In that view of the matter, the proceedings are ex facie barred by limitation. It is true that the proviso to Section 11A of the said Act provides that this period of 6 months may be extended up to 5 years, provided there was any fraud or collusion or any wilful mis-statement or suppression of facts or contravention .of any of the provisions of the Act or of the rules made thereunder with intent to evade payment of Duty by the assessee. In the impugned Show Cause Notice there is no allegation whatsoever of any of these ingredients justifying extension of the period of 6 months provided in normal cases. 12. There is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod from 1-3-1988 to 1-3-1991. The petitioner has filed a supplementary affidavit challenging this order. The respondents say that the petitioners could not take advantage of the interim order dated 30-5-1991, passed by this Court, which had given the petitioners an opportunity to challenge the subsequent orders by way of a supplementary affidavit, as the interim order has since expired. In my view, this submission is too technical to be taken into consideration. A copy of the supplementary affidavit has been served upon the respondents. In any event, it is a matter of record and the question is being decided on the basis of the order itself. 17. In this Show Cause Notice dated 2-4-1993, which has been issued by the Collector of Central Excise, an allegation has been made against the petitioner to the following effect :- "The assessee suppressed the material fact of chemical preparation of the product for the purpose of classification with the intent to evade payment of Central Excise Duty." 18. In my view, this is no allegation of fraud, willful mis-statement etc. justifying the invocation of proviso to Section 11A. The decisions cited above have specifically held that there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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