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TMI Blog2025 (5) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Act, 1944 Act by classifying the same as Sharbat under tariff item 2106 9011 of the Central Excise Tariff Act, 1985 @ 2% under Notification No.1/2011-CE dated 01.03.2011, as amended, and was also availing SSI exemption under the Notification No.8/2003-CE dated 01.03.2003. 3. The Appellant obtained central excise registration on 22.01.2015 by disclosing the goods as food mixes, separately classified as Sharbat falling under tariff item 2106 9011. The list of ingredients was also provided by the Appellant while seeking registration. Thereafter, the Appellant furnished Quarterly ER-3 Returns disclosing the details of manufacture and quantum of clearances, HSN number of Sharbat, details of exemption notifications etc. After the Appellant furnished Returns, audit was also conducted and no objection was taken by the Department, either in respect of the classification adopted or in respect of the benefit of exemption notifications. 4. During the second audit conducted by the Officers of CGST and Central Excise Audit Circle, Varanasi, it was observed that the Appellant has wrongly assessed and paid duty@ 2% under Section 4 of the Act on the transaction value and wrongl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9011 and other manufactured items i.e. premium thandai, kesaria pista and badam pista merit classification under tariff item 2008 1990 and squash merits classification under 2008 99. The Appellant also made detailed submissions on extended period of limitation. 8. By the impugned Order-in-Appeal dated 16.07.2021, the Ld. Commissioner (Appeals) partly allowed the appeal by disposing the appeal with the finding that syrup (rose syrup, khas syrup etc.) merit classification under item 2106 9011, premium thandai, kesaria pista and kesaria badam merit classification under 20081990 and squash merit classification under 200899. As regards valuation, the Ld. Commissioner (Appeals) held that the goods of both the chapters 20 and 21 are assessable under Section 4A, as both such goods are covered by Notification No.49/2008-CE(NT) dated 24.12.2008 and abatement @ 35% is available for goods of chapter 20 and abatement @ 25% is available on the goods of chapter 21. The Ld. Commissioner (Appeals) thus re-quantified the duty liability to Rs.8,54,720/-, however in absence of verification report from the Assistant Commissioner, the matter has been remanded back to the Adjudicating Authority to exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of adjudication pursuant to remand order. We have been informed that no order pursuant to the impugned order has been passed till date. Be that so as it may, the same will not make any difference in view of the settled law that as soon as the remand order is set-aside, the order, if any, passed pursuant to remand order, automatically gets non-est [Nagesh Datta Shetti vs. State of Karnataka (2005) 10 SCC 383]. Hence, there is no hindrance in hearing the present appeal. 13. Heard both the sides and perused the appeal records. 14. We find that the only issue arising in the present appeal is whether the extended period of limitation has been rightly invoked in the facts and circumstances of the case. 15. Since the impugned order has been challenged only on the ground of limitation, we deem it fit to reproduce the relevant findings recorded in Paragraph 5.4 of the adjudication order as under:- "I find that the case in hand is totally different from the above-mentioned cases as per analogy mentioned against each of them. In the present case, the party has not submitted their price list before the department at any point of time. As it is already proved that the assessee had suppress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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 word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." The aforesaid proposition has been reiterated in Anand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut ( 2005 ) 7 SCC 749. 18. Even the findings recorded in paragraph 5.4 of the adjudication order to c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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