Mere failure to declare does not amount to wilful misdeclaration or wilful suppression, and the Department should immediately take up the contention if it felt that the party was not entitled to the benefit of the notification.

ORDER :

S.N. Variava, J.

This appeal is filed against an order of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT), New Delhi, dated 22-2-2002. The question involved is whether the respondents were entitled to invoke the extended period of limitation under Section 11A of the Central Excise Act, 1944.

2. The Tribunal has relied upon a judgment of the larger Bench of the Tribunal in Nizam Sugar Factory v. CCE, (1999) 114 ELT 429 (Tri) and held that the extended period of limitation was available.

3. We find that there is no dispute to the fact that the classification list had been approved by the Sector as well as the Range Officer after carrying out verification.

4. Between the Department and the appellants there had earlier been dispute regarding classification of this product. On 31-10-1991 Excise Preventive Officers had intercepted one consignment of the appellants in transit and seized goods which contained labels of foreign brand name. All the RT 12 returns were being regularly filed. The invoices containing description of the goods have all been regularly approved by the Department.

5. The appellants have all along claimed that merely because they were affixing the label of a foreign party, they did not lose the benefit of Notification No. 175/86-C.E. as amended by Notification No. 1/93-C.E. The view taken by the appellants had, in some cases, been approved by the Tribunal which had held that mere use of the name of a foreign party did not disentitle a party from getting benefit of the notifications. It is only after the larger Bench held in Namtech Systems v. CCE, (2000) 115 ELT 238 (Tri) that the position has become clear.

6. It is settled law that mere failure to declare does not amount to wilful misdeclaration or wilful suppression. There must be some positive act on the part of the party to establish either wilful misdeclaration or wilful suppression. When all facts are before the Department and a party in the belief that affixing of a label makes no difference does not make a declaration, then there would be no wilful misdeclaration or wilful suppression. If the Department felt that the party was not entitled to the benefit of the notification, it was for the Department to immediately take up the contention that the benefit of the notification was lost.

7. In this case, as set out hereinabove, all facts were within the knowledge of the Department. Therefore, even if the ratio of Nizam Sugar Factory case1 is applied, there is no justification for invoking the extended period of limitation.

8. It follows that if limitation is not available, no penalty can also be imposed.

9. For this reason, the decision of the Tribunal cannot be upheld.

10. The appeal is allowed. The impugned judgment is set aside.