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392 EXCISE LAW TIMES [ Vol. 372

He submits that in the light of the above decisions, the demand for duty, if any,
can be made only from the date on which the Department drew samples and
forwarded to the Chemical Examiner, i.e., 9-8-2006 and not for the earlier period.
4. Learned Counsel further submits that the appellants were regularly
filing E.R.-3 Returns; there was no suppression of facts on their part; they were
availing the duty exemption only after the impugned goods were got tested by
the Department; they also kept the Department informed about their intention to
claim exemption from duty in terms of the said Notification vide their letters
dated 12-11-2003 and 15-3-2005; on the basis of the directions given by the Inves-
tigating Agency, they applied and obtained Central Excise Registration on 16-10-
2006 and from that date they have been paying duty on the impugned goods
manufactured by them; no willful suppression of facts can be attributed to them
in terms of the following decisions of the Hon’ble Supreme Court :
• Pushpam Pharmaceuticals Co. v. Collector - 1995 (78) E.L.T. 401 (S.C.)
• Tamil Housing Board v. Collector - 1994 (74) E.L.T. 9 (S.C.)
• Padmini Products v. Collector - 1989 (43) E.L.T. 195 (S.C.)
• Collector v. Chemphar Drugs and Liniments - 1989 (40) E.L.T. 276 (S.C.)
4.1 Learned Counsel also submits that extended period of limitation
cannot be invoked in this case in terms of the proviso to Section 11A of the CEA,
1944 as there is no fraud, collusion or any willful misstatement or suppression of
facts or contravention of any of the provisions of the CEA, 1944 or Rules made
thereunder with an intention to evade payment of duty; the proceeding initiated
by the Department in the instant case is barred by limitation; In terms of Section
11A of CEA, 1944 SCN can be issued within one year from the relevant date; in
the instant case, the SCN was issued on 5-2-2007; demand, if any, can be only be
issued for the period prior to one year from the date of the show cause notice,
i.e., 5-2-2006 to 5-2-2007. The demand for the period prior to 5-2-2006 is barred by
limitation; he relies upon the following :
• Mathania Fabrics v. CCE, Jaipur - 2008 (221) E.L.T. 481 (S.C.)
• Salasar Dyeing & Printing Mills (P) Ltd. v. CCE, Surat - 2009 (235)
E.L.T. 93 (T).
• CCE v. CMS Computers - 2005 (182) E.L.T. 20 (S.C.)
4.2 Learned Counsel also submits that the impugned Order-in-Appeal
passed by the Ld. Commissioner (Appeals) is not sustainable in the light of the
various evidences and case laws placed on record; Ld. Commissioner (Appeals),
in complete non-application of mind, has not considered the specific submission
made by the Appellants that the impugned goods cannot be classified under
CSH 54.02, as the Denier is more than 600 or above; to be classified under CSH
5402, it should be Synthetic Filament yarn of less than 60 deniers; Ld. Commis-
sioner (Appeals) relied on the averment of Shri Abdul Wajid, in statement dated
27-12-2006, that they have manufactured the same item since the factory came
into existence in 2003, while ignoring his averment that they were manufacturing
polypropylene yarn of different denierage like 600, 840, 1200 etc. Similarly,
statements of Sameer Pasha dated 27-12-2006 and the statement of S.I Joseph of
the Appellant Company, Madurai branch, stating the goods supplied by them to
Usha Traders are of 600 deniers, was ignored; statement of Abdul Wajid dated
27-12-2006 is not correct as is contrary to the test reports, cannot be relied upon.
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