ORDER
Gowri Shankar, Member (T)
1. Although the stay application has been listed today, the appeal itself is taken up for disposal with the consent of both sides.
2. The appellant filed a classification list with the Jurisdictional Central Excise authority effective from 1-9-1992 classifying the high density poly ethylene woven sacks manufactured by it under heading 3923.90 of the Tariff. It is not in dispute that the classification list was approved in due course. It therefore covered the clearances from the date on which it was effective. The appellant cleared on 21st and 22nd September, 1992 some quantities of these woven sacks. The duty paid on these goods before their clearance was not the duty applicable under heading 3923.90, but the lower rate of duty applicable to tariff heading 6301.00. Notice dated 28-8-1997 issued to the applicant proposed to recover the difference between the duty paid and the duty payable on the goods in accordance with the classification list filed The notice sought to invoke the extended period contained in the proviso under section 11A(1) on the ground of suppression of the fact that the gate passes under which the goods were cleared did not show the tariff heading 3923.90. The Dy. Commissioner after hearing the assessee and considering the submissions made, confirmed the proposal in the notice. He said that the extended period was available. This order having been confirmed by the Commissioner (Appeals), and the matter is before us.
3. We do not find that the appellant has a case on merits. The contention of the advocate for the appellant that it was not permissible for the department to apply to this clearances the circular dated 24-9-1992 issued under section 37B of the Act by the Board, is no doubt correct. That circular would not take effect retrospectively. However the demand for duty is based not on this circular, but on the fact that the duty paid was not in accordance with the classification claimed by the assessee and ultimately approved. Therefore, notwithstanding, that the circular under section 37B would not apply, the duty which was payable was duty applicable to the heading 3923.60.
4. We however agree that extended period of limitation would not be available to the department. Despite the fact that correct tariff heading was not shown in the gate passes in question, the fact that the duty which was paid was less than the duty payable would have been apparent from these gates passes, copies of which were required to be submitted with the RT 12 returns for the month in question. There is no question that they have been submitted. Even in the absence of the correct tariff heading of the gate passes, the department by examining the duty paid on these gate passes would easily come to the conclusion the duty which was paid was not the duty which was due. Failure to detect the short payment within six months was therefore not on account of any act or omission of the appellant. It would therefore follow that the extended period of limitation would not be available. The demand is barred by limitation.
5. The appeal is accordingly allowed and impugned order set aside.