1983 (4) TMI 166

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.... allows the benefit of doubt to the respondent that there was no deliberate suppression of facts by them. 2.  This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri A. Vijayaraghavan, Departmental Representative for the appellant and upon hearing the arguments of Shri J.B. Koshy, Advocate for the respondent, the Tribunal makes the following order: 3.  Under her order C. No. V/14G/30/202/81, dated 4-1-82 the Assistant Collector of Customs and Central Excise, Ernakulam-I Division found that M/s. Fertilisers and Chemicals Tranvancore Ltd., (FACT) Udyogamandal were liable to pay duty on Sulphuric Acid used for pollution control and were not eligible for the exemption contained in Notifi....

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....er No. DFM(CD)/CE/441/80, dated 24-5-1980 addressed to the Ministry of Petroleum, Chemicals and Fertilisers, Government of India, the respondent had asked that Ministry to move the Finance Ministry for exempting sulphuric acid used for effluent treatment in the fertiliser industry. Thus the respondents were aware of the correct position regarding payment of duty on the sulphuric acid in question; they did not declare the correct position in the statutory records and returns. Therefore, it has correctly been held by the Assistant Collector that there has been suppression of facts on the part of the assessee leading to non-levy of duty; in terms of the proviso to Section 11 A of the Act, the period of limitation has, therefore, to be taken as....

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.... We also called for and saw representative copies of R.T.12 returns and Classification Lists filed by the Respondent during the relevant period. The R.T.12 returns refer to sulphuric acid without any distinction between its use for fertilisers and for pollution control; the R.T.12 for the month of November 1978 shows a quantity of 14851.453. M.Ts under the head "fertiliser", R.T.12 for August 1979 shows a quantity of 18,663.772 M.T. under the head "fertiliser", R.T.12 for April 1980 shows a quantity of 8437.241 M.T. as per "fertiliser consumption". The classification list approved with effect from 7-4-1977 shows sulphuric acid used for various purposes under Sl. Nos. 1 to 4; Sl. No. 3 deals with sulphuric acid used in the manufacture of "....

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....ade by the person on whom notice is served......shall determine the amount of duty of excise due from such person.........." Proviso to Section 11A(1) provides that where a non-levy or short-levy is by reason of "fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of duty, by such person or his agent," the period of six months will be extended to five years. If, therefore, the proviso to Section 11 A is to apply the notice of the demand issued by the Department and confirmed by the Assistant Collector in his order referred to, it will be within time. It was strenuously urged on behalf of the respondent that ....