ORDER
S.S. Kang, Vice President
1. The appellant filed this appeal against the impugned order whereby demand for the period April 1990 to 15.12.99 was confirmed by issuing a show-cause notice on 17.3.04 and penalty is imposed. The brief facts of the case are that the appellants are engaged in the manufacture of brass rods, and from the brass rods they are manufacturing brass wires. The appellants were availling the benefit of small scale exemption in respect of brass rods. As per notification, the benefit is available if the brass rods so produced are less than 10 feet long. On 31.10.99, the officers of Revenue visited the premises of the appellant and it was found that certain quantity of brass rods manufactured by the appellant an more than 10 feet length. The brass rods were seized. Thereafter on 16.12.99 also the appellant explained the reasons that the brass rods more than 10 feet because due to over flow in the dies it happened and thereafter the rods were cleared under notification were less than 10 feet long. A show-cause notice was issued on 17.3.04 for confiscation of the brass rods seized from the appellants premises and adjudicating authority subsequently confiscated the brass rods and this order is not challenged by the appellant
2. Thereafter, in the year 17.3.04 another show-cause notice was issued for demanding duty from April 1990 to 15.12.99 in respect of brass rods which were more than 10 Feet long asking for duty in respect of brass rods after denying the benefit of notification on the ground that the same were more than 10 feet. The adjudicating authority confirmed the demand and imposed the penalty. The appellant field appeal the same was dismissed.
3. The contention of the appellant is that as earlier show-cause notice was issued on 7.2.200 regarding seizure of brass rods, therefore, the present demand is confirmed on the ground that the appellants suppressed the material facts with intent to evade payment of duty is not sustainable. As the Revenue was aware of the fact that certain quantity of brass rod were more than 10 feet which were confiscated by the earlier adjudication order, the contention of the appellant is that therefore, the demand is time-barred and appellant relied upon the decision of Hon’ble Supreme Court in the case of Nizam Sugar Factory v. CCE reported in 2006 (197) ELT 465.
4. The contention of the Revenue is that earlier proceeding is in respect of confiscation of the goods and show-cause notice is to be issued within six months from the date of seizure, therefore, the demand is not time barred. As in the present proceedings the duty is demanded in respect of the goods cleared by the appellant without payment of duty.
5. The contention of the appellant is that demand is time-barred. Admitted facts are that on 31.10.99 officers of Revenue visited the premises of the appellant and seized quantity of brass rods which is more than 10 feet and subsequently on 16.12.99 also investigation was conducted where the appellant explained the reasons regarding length of the rods and thereafter a show-cause notice issued on 7.2.2000 for confiscation of the brass rods and the adjudicating authority passed the order for confiscation. The present proceedings were initiated by issuing a show-cause notice on 17.3.2004 for demanding duty for the period April 1999 to 15.12.99 alleging suppression on the part of the appellant. The present show-cause notice is also based on the same investigation on the basis of which the earlier snow-cause notice was issued. The Hon’ble Supreme Court in the case of Nizam Sugar Factory (supra) held that when all relevant facts with the knowledge of authorities when first show-cause notice issued than allegation of suppression of facts in the second show-cause notice based on the same facts is not sustainable. The Hon’ble Supreme Court held as under:
Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notice the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of the assessee/appellant.
6. In the present case, also the second show-cause notice was issued in the year 2004 which is based on the same facts on the basis of which earlier show-cause notice was issued in the year 2000, therefore, in view of the above decision of Hon’ble Supreme Court the allegation of suppression with intent to evade payment of duty is not sustainable hence the demand is time-barred. The impugned order is set aside and the appeal is allowed.
(Dictated & pronounced in open Court)