ORDER
G.A. Brahmadeva, Member (J)
1. This appeal arises out of and is directed against Order-in-Original No. 20/93 dated 19.4.1993 of the Collector of Central Excise, New Delhi.
2. Shri P.S. Bedi, Advocate appearing for the appellants submitted that apart from the merit of the case, the demand was clearly barred by time. He said that the Collector has issued a show cause notice invoking the larger period for the recovery of the refund amount. The Asstt. Collector after verification of the price list under declaration on adjudication, refund was granted. In these circumstances, it cannot be said that there was no wilful suppression on the part of the appellants. When the entire facts within the knowledge of the Department, if the order of the Asstt. Collector was erroneous, the best course open to the department to file an appeal against that order. Under the similar circumstances, the Asstt. Collector has passed three orders regarding refunding the respective orders but against the amount of Rs. 27,179.04, the Department has issued a show cause notice for the recovery of the amount on the ground that it was erroneously refunded. He contended that there was no misdeclaration or mis-statement since the documents placed before the Asstt. Collector revealed the factual position.
3. Shri Prabhat Kumar, SDR countering the arguments submitted that since the party has not filed a true and correct statement with reference to the declaration in the price list and he submitted that since the refund was granted erroneously, the Collector was right in invoking the larger period as there was suppression of facts. In support of his contentions, he cited the following decisions:
(1) Indian Tobacco Co. and Anr. v. Union of India 1988 (17) ECR 148 (SC).
(2) Cosmic Dye Chem v. CCE .
4. In the latter case, it was stated that the show cause notice was not barred by limitation, if it was within the period of 5 years for alleging for mis-statement or suppression of facts or contravention of provisions with the intent to evade payment of duty. He submitted that in the instant case, the Department was just right in invoking the larger period and show cause notice cannot be set aside on this ground.
5. We have carefully considered the submissions made by both the sides. Suppression of facts depend upon the facts of each case and in the instant case, it is clear that all the documents were placed before the Asstt. Collector. It was the duty of the Asstt. Collector to make proper investigations with reference to the documents placed before him before granting the refund. There is some force in the arguments advanced on behalf of the appellants that if the order passed by the Asstt. Collector was not in accordance with the provisions of the Act, the best course open to the appellants to file an appeal In the facts and circumstances of the case, it cannot be said that there was suppression of facts. If all the facts were within the knowledge of the Department, the Department was not justified in invoking the larger period as it was rightly argued on behalf of the appellants. In view of the above, we set aside the impugned order and allow the appeal on point of limitation with consequential relief.
Order dictated & pronounced in the Open Court on 24.2.1999.