1. Appeal under Section 35B of the Central Excises and Salt Act, 1944 praying that in the circumstances stated therein the Tribunal will be pleased to set aside that part of order No. 72/82(C) dated 10-3-1982 of the Appellate Collector of Central Excise, Madras that allows the benefit of doubt to the respondent that there was no deliberate suppression of facts by them.

2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri A. Vijayaraghavan, Departmental Representative for the appellant and upon hearing the arguments of Shri J.B. Koshy, Advocate for the respondent, the Tribunal makes the following order:

3. Under her order C. No. V/14G/30/202/81 dated 4-1-82 the Assistant Collector of Customs and Central Excise, Ernakulam-I Division found that M/s. Fertilisers and Chemicals Tranvancore Ltd., (FACT) Udyogamandal were liable to pay duty on Sulphuric Acid used for pollution control and were not eligible for the exemption contained in Notification No. 81/75-CE dated 22-3-1975 available to Sulphuric Acid used in the manufacture of fertilisers; the company (the respondent in the present appeal) were, therefore, required to pay an amount of Rs. 37,156.99 being the duty involved for the period April 1977 to March 1981. In his Order No. V/14(G)/6/82 dated 10-3-1982 the Appellant Collector of Central Excise, Madras disagreed with the argument of the respondent that the Sulphuric Acid used for pollution control was entitled to exemption. He was, however of the opinion that,

"The appellants sincerely believed that they were correct in not paying duty on the sulphuric acid used for pollution control and not recording such use in RG. 1 and RT. 12. The circumstances indicate that there was no deliberate suppression of facts by the appellants".

He extended the benefit of doubt to them and held that the demand was barred by limitation under Section 11A of the Central Excises and Salt Act, 1944.

4. The present appeal is filed by the Collector of Central Excise, Cochin against this order of the Appellate Collector.

5. It is stated in the appeal that that part of the sulphuric acid issued to the composite ammonia plant which was intended for pollution control has not been shown separately in the statutory accounts maintained by the respondent and the returns submitted by them to the Department; in the Cochin Division of the respondents duty was being collected on sulphuric acid so used; in fact by a letter No. DFM(CD)/CE/441/80 dated 24-5-1980 addressed to the Ministry of Petroleum, Chemicals and Fertilisers, Government of India, the respondent had asked that Ministry to move the Finance Ministry for exempting sulphuric acid used for effluent treatment in the fertiliser industry. Thus the respondents were aware of the correct position regarding payment of duty on the sulphuric acid! in question; they did not declare the correct position in the statutory records and returns. Therefore, it has correctly been held by the Assistant Collector that there has been suppression of facts on the part of the assessee leading to non-levy of duty; in terms of the proviso to Section 11A of the Act, the period of limitation has, therefore, to be taken as five years from the relevant date.

6. The appellant has also sought condonation of the delay of one day in the filing of the appeal, as he had to get a copy of the letter dated 24-5-1980 from M/s. FACT addressed to Government of India which was not available with him. Considering the importance of the letter on which the appellant had to rely and the period of delay being one day, we condone the delay in the filing of the appeal.

7. The learned counsel for the respondent stated that the Cochin Division and the Udyogamandal Division of FACT are operated as independent units; it was his plea that even the Cochin Division was not paying duty on sulphuric acid used for pollution control before 1980; non-disclosure of information will not amount to suppression of facts; at b