Per Shri P.C. Jain :

By the impugned order, the adjudicating authority, namely, Collector of Central Excise, Calcutta I Collectorate, has set aside the demand of duty proposed in a show-cause notice dated 6.5.91 for the period 1988-89 and 1989-90 on the ground of time bar to the effect that the show-cause notice was issued well beyond the period of normal limitation of six months provided under Section 11A. In order to appreciate, we reproduce the Collector's finding in para 8.2 of the impugned order :-

8.2. But it is on record that the said Company had filed required declarations to the jurisdictional Central Excise Authority as per Notification No. 11/88-CE (NT) dated 15.04.1988 as amended and also submitted classification lists to the proper officer. Though in their classification list they wrongly claimed their product as Insecticides it was not objected to by the Department since May'90 and also their product became exempt from payment of Central Excise duty vide Notification No. 151/90-CE, dated 16.10.90. As such I find no cause to invoke extended of 5 (Five) years to demand Central Excise duty from the said Company as had been proposed in the impugned Show Cause Notice.

2. Against the said finding, the Central Board of Excise & Customs (CBEC) in exercise to its power under Section 35E of the Central Excise Act, 1944 has examined the legality and propriety of the order. A point was raised that there was a deliberate suppression by the assessee (respondent herein) in declaring the product. It has been observed therein that the respondent had all along tried to maintain their product as insecticide falling under Chapter Sub-heading 3808.10 attracting nil rate of duty motivately with an intention to evade payment of duty without declaring the facts that the product is 'Pure Napthalene' falling under Chapter Sub-heading 2902.00 as it is a separate chemically defined Organic Compound having no characteristic aroma as insecticide in conformity with the tariff description. Hence this application (to be treated as an Appeal before us) from the Collector of Central Excise, Calcutta I for setting aside the impugned order passed by the Collector.

3. We have heard ld. JDR, Shri S.N. Ghosh. We have examined the point as mentioned above raised by the Board (CBEC) in its order dated 23.9.92 passed under Section 35E ibid. We observe from a perusal of the declaration given by the Respondents in their cross-objection (filed by the respondent) against item no. 4 of the declaration made under Notification 11/88 that the respondent has given a full description of the goods as follows:-

"Napthalene Balls, Bricks, Powder, Urinal Blocks, Air freshner, SH. 3808.10 - Insecticide, Fungicides, herbicides, Nredicides and pesticides - duty nil."

4. From a perusal of the description as given by the respondent herein, there is no doubt that the respondent herein had declared the goods correctly and faithfully, i.e. Napthalene Balls, Bricks, Powder etc.. In the face of this description, it cannot be stated at all that the respondent indulged in any suppression of facts; it was the opinion of the respondent that the products manufactured by him as described above, are insecticide, fungicides etc. as further described against the said item. We are, therefore, of the view that on the point raised by the Board (CBEC), there is no case of suppression of facts on the part of the respondent and we do not find any infirmity in the finding of the adjudicating Collector.

5. Before we pass this order, we would like to record the submission of the ld. JDR that by the declaration under Notification 11/88 dated 8.6.89, the benefit of the declaration can at best be taken for the period from 8.6.89 onwards and not prior to that date. We are afraid that we cannot take this submission into consideration because we are to consider this application only in terms of Section 35E ibid i.e. in terms of the point or points raised by the CBEC. Nevertheless, we also find as given i