TMI Blog2006 (4) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... ppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. Thus there was no suppression of facts on the part of the assessee/appellant. For the reasons stated above, Civil Appeal Nos. 2747 of 2001 and Civil Appeal No. 6261 of 2003 filed by the assessees are accepted and the impugned orders are set aside on the question of limitation only. The demands raised against them as well as the penalty, if any, are dropped. Civil Appeals @ Special Leave Petition (C) Nos. 9271-9278 of 2003 filed by the department are dismissed. - 2747 of 2001 with 6261 of 03 & 2164 of 06 - - - Dated:- 20-4-2006 - Ashok Bhan and Markandey Katju, JJ. [Order]. - Delay condoned and Leave granted in SLP(C) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee had cleared the said carbon dioxide without payment of duty to another unit in contravention of Rule 9(1) of the Central Excise Rules, 1944 (for short 'the Rules') and without obtaining licence for manufacture of carbon dioxide in their factory; without filing Classification/Price List and without maintaining accounts. Appellant in its reply dated 19-3-1994 relying on some earlier decisions contended that impure carbon dioxide was not exigible to duty. The case was heard on 16-4-1984 and thereafter no further action was taken in the matter. 6.Appellant was served with a second SCN by the Collector on 16-7-1987 alleging that the appellant was supplying carbon dioxide to another unit as per agreement dated 19-3-1983; that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogether and disposed of by a common order. The Tribunal did not record any finding regarding the marketability but held that the impure carbon dioxide emanating as a by-product during the process of fermentation of molasses would be covered under Chapter Heading No. 28.11 of Central Excise Tariff Act, 1986 (for short 'the Tariff Act'). Counsel for the appellant had contended before the Tribunal that in a case where the Department issued a show cause notice on the basis of certain set of facts to an assessee, then, it cannot allege in another show cause notice issued subsequently for a later period, suppression on the part of the assessee as it was fully aware of the facts even at the time of the issuance of the first show cause notice. Exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been the subject-matter of consideration of the Excise authorities at different stages, when the classification was filed, when the first show cause notice was issued in 1985 and also at the stage when the second and the third show cause notices were issued in 1988. At all these stages, the necessary material was before the authorities. They had then taken the view that M/s. Pharmachem Distributors was not a related person. If the authorities came to the conclusion subsequently that it was a related person, the same fact could not be treated as a suppression of fact on the part of the assessee so as to saddle with the liability of duty for the larger period by invoking proviso to Section 11A of the Act. So far as the assessee is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P) Ltd. v. Commissioner of Central Excise, Hyderabad reported in [2004 (166) E.L.T. 151 (S.C.)]. It was observed in para 6 : ".......... On the ratio laid down in this judgment it must be held that once the earlier Show Cause Notice, on similar issue has been dropped, it can no longer be said that there is any suppression. The extended period of limitation would thus not be available. We are unable to accept the submission that earlier Show Cause Notice was for a subsequent period and/or it cannot be taken into consideration as it is not known when that Show Cause Notice was dropped. If the Department wanted to take up such contentions it is for them to show that that Show Cause Notice was not relevant and was not applicable. The Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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