ORDER :

M.K. Sharma, Anil R. Dave, JJ.

This appeal is directed against the judgment and order dated 15.7.2002 passed by CEGAT allowing the appeal of the respondent holding that the extended period of limitation was not available to the department. Being aggrieved by the said judgment and order, the present appeal is filed by the appellant.

2. We have heard learned counsel appearing for the parties.

3. The assessee manufactured the product Jaljira powder. It filed a classification declaration from time to time, i.e. from 1994 to 1999 under Chapter sub heading no. 0903.10 claiming exemption from payment of central excise duty. The aforesaid declarations of the respondent were also approved by the department. The classification list of Jaljira as submitted by the respondent was approved by the department over the years, i.e. from 1994 to 1999 and, therefore, the aforesaid assessment reached finality.

4. However, subsequently, a circular was issued wherein it was stated that Jaljira masala cannot be treated as spice and that it has to be essentially taken as an edible preparation falling under Chapter 21. In the said notification, it was further clarified that since Jaljira is used as a drink in the water, it is rightly classified under Chapter Heading no. 2108.

5. Pursuant to the aforesaid clarification issued, a show cause notice was issued by the Commissioner of Central Excise in which it was also stated that proviso to Section 11 is applicable to the facts and circumstances of the case and, therefore, extended period of limitation is being taken recourse to and exercised by the commissioner. The respondent submitted its reply to the show cause contending, inter alia, that there was no wilful supression on the part of the respondent and, therefore, the benefit of extended period of limitation cannot be invoked by the department. The Commissioner, however, held that there is suppression of facts and also clandestine removal or evasion of Central Excise duty and, therefore, the respondent is liable for duty. On appeal being filed, the Tribunal however, set aside the aforesaid order holding that the extended period of limitation is not available by passing the impugned judgment and order, as against which the present appeal is filed.

6. From 1994 to 1999, the respondent has been regularly filing their classification list with the department and the same have been approved by the department over the years. In that view of the matter, in our considered opinion, the decision of this court in the case of Anand Nishikawa Co. Ltd. v. Commissioner of Central Excise, Meerut, (2005) 7 SCC 749 is squarely applicable to the facts and circumstances of the case. We may refer to paragraph 26 of the said judgment which reads as follows:-

"26. In Tata Iron & Steel Co. Ltd. v. Union of India & Ors., (1988) 3 SCC 403, this Court held that when the classification list continued to have been approved regularly by the department, it could not be said that the manufacturer was guilty of "suppression of facts". As noted herein earlier, we have also concluded that the classification lists supplied by the appellant were duly approved from time to time regularly by the Excise authorities and only in the year 1995, the department found that there was "suppression of facts" in the matter of post-forming manufacturing process of the products in question. Furthermore, in view of our discussion made herein earlier, that the department has had the opportunities to inspect the products of the appellant from time to time and, in fact, had inspected the products of the appellant. Classification lists supplied by the appellant were duly approved and in view of the admitted fact that the flow-chart of manufacturing process submitted to the Superintendent of Central Excise on 17-5-1990 clearly mentioned the fact of post-forming process on the rubber, the finding on "suppression of facts" of the CEGAT cannot be approved by us. This Court in the case of Pushpam Pharmaceutical C