ORDER
Shri Jeet Ram Kait
1. This appeal is filed by M/s. Padma Packages Pvt Ltd, against the order of the Commissioner of Central Excise, Coimbatore by which he was demanded a duty of Rs. 81,847.00 by invoking the longer period of limitation under Section 11A(1) of the CE Act, 1944 for the period from 31.1.92 to 18.6.92 and imposed a penalty of Rs. 5,000/- on the appellants.
2. Shri Subhash Chandra, Director of the appellants Company appearing on behalf of the appellants, while reiterating the grounds of appeal, submitted that in the price list Part II, all the information and documents were supplied to the department. He also invited our attention to the price list wherein under column 12, the value of Rs. 44.66 per kg has been mentioned and this part II price is applicable to all the wholesale dealers who have got contract with them. Therefore the appellants have not suppressed any facts from the department and had no intention to evade payment of duty by suppressing any information or documents from the department.
3. Shri G. Sreekumar Menon, learned SDR read out the finding recorded in paras 12 to 14 of the impugned order in which the Commissioner has held that there is suppression of fact inasmuch as the enhancement of conversion charges was not informed to the department and the department could not contemplate revision of the approved price with effect from 30.8.91 in Part VII for the conversion work. He has held that the Hon’ble Tribunals and other judicial forums have held that informing the department in vague terms without disclosing true position would tantamount to suppression and misdeclaration. In this connection he relied upon the judgement in the case of CCE vs. Wipro Information Technology reported in 1989 (39) ELT 113. The learned SDR further contended that the documents were handed over in bundles to the Supdt. and it was not possible for the Supdt. to verify each and every documents, though he conceded that information was available in those bundle of documents.
4. We have considered the submissions, gone through the impugned order and perused the records. We find that longer period of limitation cannot be invoked in this case, as there is no misdeclaration of any information in the price list and inference that there was intention to evade payment of duty cannot be drawn automatically. The show cause notice must contain averments and point out specifically as to which of the various omissions or commissions stated in the proviso to Section 11A(1) of the CE Act, 1944 has been committed by the assessee and the adjudicating authority must specifically deal with assessee’s contention in rebuttal thereof. This has been held so by the Hon’ble Apex Court in the case of CCE vs. HMM Ltd. Reported in 1995 (76) ELT 497 (SC). Further the Hon’ble Apex Court in the case of Tamil Nadu Housing Board vs. CCE, Madras reported in 1994 (74) ELT 9 (SC) has held that the demand for the extended period can be made only if there was existence of both the situations; viz (1) suppression, fraud, collusion etc. and (2) intend to evade payment of duty is proved and the initial burden to prove both the situations is on the department and that once the department discharges such burden, it shifts to the other side and then the applicability to Section 11A is to be construed liberally. It was clearly held by the Hon’ble Apex Court that intention to evade payment of duty has to be proved before invoking the longer period of limitation.
5. In the present case we find that both in the price list and in the other documents the appellants have disclosed all the information which was relevant to the department. We therefore, find lot of merit in the appeal filed by the appellants. In this view of the matter, the impugned order is set aside and the appeal is allowed with consequential relief, if any.
(Dictated and pronounced in open Court)