The main legal point established in the judgment is that there was no mis-declaration or suppression of facts by the Assessee, and thus the show cause notice dated 30.01.2004 was set aside.

JUDGMENT

A.S.Chandurkar, J. - Admit. Heard learned counsel for the parties.

2. This appeal filed under Section 130 of the Customs Act, 1962 (for short, the Act of 1962) has been heard on the following substantial questions of law:

(a) In the light of earlier adjudication dated 06.10.2005 pertaining to the same Assessee, whether the Appellate Tribunal erred in not considering the effect of that adjudication ?

(b) Whether in the facts and circumstances of the case, the Appellate Tribunal erred in holding that the extended period of limitation was invocable and upholding the differential duty on that count ?

(c) Whether in the facts and circumstances of the case, the Appellate Tribunal was correct in confirming the differential duty when the same is available to the appellant as Modvat Credit ?

3. The aforesaid substantial questions of law arise in view of the challenge raised by the appellant-Assessee to the order dated 13.12.2016 passed by the Customs, Excise and Service Tax Appellate Tribunal - Tribunal thereby dismissing the appeal preferred by the Assessee and upholding the order passed by the Commissioner, Central Excise on 20.05.2005. As a result, the show cause notice dated 30.01.2004 proposing the goods covered by bills of entry at serial numbers 1 to 49 were held liable for confiscation under Section 111 (m) of the Act of 1962 for suppression of facts, differential duty on the goods cleared under Section 28 of the Act of 1962, imposition of penalty under Section 112 (b) of the Act of 1962 along with interest at appropriate rate under Section 28 AB of the Act of 1962.

4. The facts in brief giving rise to the present proceedings are that it is the case of the Assessee that it is a Company incorporated under the Companies Act, 1956 and is engaged in the manufacture of master batches that fall under Chapter 39 of the Central Excise Tariff. Calcium Carbonate is one of the items used in the manufacture of the master batches. Since 1997 the Assessee has been importing Calcium Carbonate and the same was being classified and assessed to custom duty under Heading No.25.30 of the Customs Tariff as "mineral substance not elsewhere specified or included". In proceedings initiated by the Revenue for re-classification of Calcium Carbonate as imported, the same was classified under the Heading 25.30. The earlier proceedings that commenced pursuant to separate show cause notices concluded by classifying Calcium Carbonate 2T SA under the Head 3824.90. It was also held that by describing the said goods as aforesaid there was no mis-declaration or suppression by the Assessee.

On 30.01.2004 another show cause notice came to be issued to the Assessee by the Commissioner, Customs and Central Excise, Nagpur calling upon it to show cause as to why the goods covered vide bills of entry at serial numbers 1 to 49 during the period from 14.01.2003 to 18.01.2003 be not held liable for confiscation under Section 111 (m) of the Act of 1962 on account of mis-statements and suppression of facts especially by declaring the said goods as falling under CSH 2830.90. Differential duty was also sought to be demanded alongwith penalty and interest. The Assessee submitted an explanation to the aforesaid show cause notice and the Commissioner, Central Excise by his order dated 20.05.2005 recorded a finding that the Assessee had mis-declared the goods by not making any mention of Calcium Carbonate not being coated with stearic acid. This amounted to mis-declaration and suppression of crucial facts thus rendering the imported goods liable for confiscation. On that premise differential duty under Section 28 of the Act of 1962 was demanded alongwith interest and penalty. The Assessee being aggrieved by the aforesaid order preferred an appeal before the Tribunal. The Tribunal on 01.09.2005 was pleased to waive pre-deposit of duty and penalty and also stayed the recovery of amounts due during the pendency of the appeal. An application preferred by the Revenue for re-considera