ORDER
S.S. Sekhon, Member (T)
1. After hearing both sides and considering the matter, it is found that the issue of classification of the entity under Chapter 6302 is not in doubt or contest. Show Cause Notices dated 7.6.96,6.8.96,26.8.96 and 24.10.96 for the period December 1995 to June 1996, July to August 96, September and October 1996 were issued. The present Show Cause Notice on similar issue of classification of the very said entity under Heading 63.02 with allegations of suppression of facts with indent (sic, intent) to evade duty for the period March 95 to November 95 was issued only on 10.8.1999. The Commissioner has found the justification for invoking the proviso to Section 11A(1) for the reason that the order of classification was upheld on 14.10.1997 by the Commissioner of Central Excise (Appeals) and the assessee did not give information regarding production clearance of excisable goods, even after repeated requests from the Department by way of letters, summons etc. and therefore information was gathered from other departments like Sales Tax /Income Tax and that the appellant did not contest nor deny about the information, submission of information about production and clearance of the impugned goods and only by a casual remark it contested the value and duty as shown in Annexure to the Show Cause Notice was not correct and therefore he found that the allegations made in the Show Cause Notice and its Annexure would appear to be proper and acceptable. His finding is to the effect that:
“It is pertinent to note that in the absence of proper production/clearance records and in view of non-cooperation by the appellants to submit the relevant information, it is not possible for the Department to arrive at the value of clearances and in turn to calculate the city evaded. I fully agree with the findings of the adjudicating authority that “In such evasion cases only the five year period is given as there is non-cooperation by the evaders to furnish any proper records or provide any relevant information. The same has to be unearthed by the preventive officers against many odds and non-co-operation. Hence, date of knowledge of some prima facie case of evasion is not relevant and is not part of the law.”
2. This finding of the Commissioner cannot be upheld and invoke the proviso under Section 11A(1) of the Act, when we find that the Supreme Court in the case of ICE Industries Ltd., had held:
4. In the case of P&B Pharmaceuticals (P) Ltd. v. Collector of Central Excise (Also reported in 2003 (153) ELT 14 (SO) [2003 (2) SCALE 390], the question was whether the extended period of limitation could be invoked where the Department has earlier issued show cause notices in respect of the same subject-matter. It has been held that in such circumstances, it could not be said that there was any wilful suppression or misstatement and that therefore, the extended period under Section 11A could not be invoked.
5. In our view, the principles laid down in above case fully apply here. As earlier proceedings in respect of same subject-matter were pending adjudication it could not be said that there was any suppression and the extended period under Section 11A was not available.
3. In the facts of this case, the matter of limitation requires reconsideration. The Ld. Consultant for the appellant submitted that all records and documents were recovered by the department consequent to search operation and were in the possession of the department and even after repeated requests, their inspection was not granted. It was also contended before us that the valuation taken of the goods is as per the sale price and in this matter, the law being settled, the benefit of the sale price to be cum-duty has to be given to the assessee. We find no reason to deny this plea of cum-duty price as regards this act and documents being available with the department. At this stage, those facts cannot be determined and they have to be re-established in the remand proceedings which are required to be made to reconsider the duty demands, in light of the law well settled, as also the benefit of the sale price of non-duty paid goods to be considered to be cum duty if and when duty demands are determined subsequently. This matter is therefore allowed as remand to the adjudicating authority for de novo adjudication in the above terms.