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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI
G.A. BRAHMA DEVA, J.H. Joglekar, JJ.
Systems & Stamping -Appellant
Versus
Collector of Central Excise, Kanpur -Respondent
Final Order No. E/58/98B Appeal No. E/2443/89-B1, E/58 of 1998, E/2443 of 1989
Decided On : 19-12-1997
A.P. Mathur,D.S. Negi
Per G.A. Brahma Deva :
This is an appeal filed by the assessees against the impugned order dated 28.2.1989 passed by the Collector of Central Excise, New Delhi.
2. Shri A.P. Mathur, learned Advocate, submitted that apart from merit of the case the demand is barred by time inasmuch as the department is not justified in invoking the larger period. Referring to the show cause notice dated 16.6.1986 he said that entire demand is barred by time in the absence of specific allegation of suppression of facts. On the other hand, Shri Negi drew our attention to the finding given by the Collector (appeals) on this issue wherein he has observed that totality of the show cause notice is to be considered and as long as the facts stated in the Show Cause Notice imply suppression of facts invoking of the extended period of five years is justifiable.
3. We have carefully considered the matter. It is settled position now that commission and omission should be clearly brought out in the show cause notice. Inference cannot be drawn from the fact of the wordings in the show cause notice unless it is clearly stated in the show cause notice whether the assessee has suppressed the facts. In the case of H.M.M. Limited reported in 1995 (76) ELT 497 (SC) the Supreme Court observed that limitation for extended period not invokable unless show cause notice puts assessee to notice specifically as to which of the various commissions or omissions stated in the proviso to Section 11A(1) of the Central Excises Act has been committed. The same view has been reaffirmed by the Supreme Court in the case of Raj Bahadur Nawrain Singh Sugar Mills Ltd., reported in 1996 (88) ELT 24(SC). Further this view was reiterated by the Apex Court in the case of Pharmasia Pvt. Ltd. reported in 1997 (92) ELT 464 (S.C.). In the facts and circumstances the view expressed by the Collector (Appeals) is contrary to the observations made by the Apex Court in the cases referred to above. Accordingly, we accept the contention of the party that demand is barred by time and in the result, the appeal is allowed.
