The extended period of limitation cannot be invoked where show-cause notices have been issued for the same subject-matter, and there is no suppression of facts on the part of the appellant.

ORDER

1. Delay condoned and leave granted in SLPs (C) Nos. 9271-78 of 2003.

2. This order shall dispose of Civil Appeals Nos. 2747 of 2001 and 6261 of 2003 filed by the asses sees and Civil Appeals @ Special Leave Petitions (C) Nos. 9271-78 of 2003, filed by the Revenue. The point of law canvassed is common in these appeals.

3. Civil Appeals Nos. 2747 of 2001 and 6261 of 2003 have been filed under Section 35-L(b) of the Central Excise Act, 1944 (for short "the Act") against Final Order No. 326 of 2000 dated 19-7-2000 and Final Order No.. 462 of 2002-A dated 24-9-2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (for short "the Tribunal") in Appeal No. E/801l89-C and Appeal No. E/1250/2002-A whereby the Tribunal dismissed the appeals filed by the assessees whereas Civil Appeals @ Special Leave Petitions (C) Nos. 9271-78 of 2003 have been filed by the Revenue against Final Order No. CI/2019-26/WZB/2002 dated 23-7-2002 passed by the Tribunal in Appeals Nos. E149 to 153 and 447 to 449/2001-Mum.whereby the Tribunal allowed the appeals filed by the respondents.

4. The facts are stated from Civil Appeal No. 2747 of 2001 (M/s Nizam Sugar Factory).

5. The Department had issued a show-cause notice (for short "the SCN") to the appellant on 28-2-1984 demanding duty for the period February 1978 to September 1982 on the production of impure carbon dioxide emanating as a by-product during the process of fermentation of molasses in the appellant factory. It was alleged that the asses sees 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. The appellant in its reply dated 19-3-1984 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. The appellant was served with a second SCN by the Collector on 16-71987 alleging that the appellant was supplying carbon dioxide to another unit as per agreement dated 19-3-1983; that they had not taken necessary licence;

had not followed the procedure prescribed under the Rules; and had not discharged duty liability. The said SCN covered the period of Assessment Years 1982-83 to 1986-87. The appellant responded to the second SCN and took the plea that the SCN under consideration was practically a repetition of the allegations contained in the SCN dated 28-2-1984 and for the period April 1982 to September 1982 the Department had raised demands under two different SCNs. It was pointed out that carbon dioxide in the impure form was not marketable as it also contained carbon monoxide in lethal proportions. It was contended that they were under bona fide belief that since such impure carbon dioxide was not exigible to payment of duty, they were not required to file either classification list or the price list or take out licence.

It was submitted that resorting to extended period of limitation under Section 11-A(1) was not justified in the circumstances of the case. The appellant was served with the third SCN on 12-9-1988 for the period 16-3-1988 to 27-61988 on the same allegations. The assessee filed its reply in terms of the earlier replies i.e. reply to SCN dated 16-7-1987. The adjudicating authority lid not accept the appellant's contention and the demands raised in the SCN were confirmed.

7. Aggrieved against the aforesaid orders of the adjudicating authority, the appellant filed appeals before the Tribunal relating to the second and third SCNs which were clubbed together 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 woul