1998 (11) TMI 276

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....cause notice dated 2-4-1991 was issued to them for demanding Central Excise Duty amounting to Rs. 1,51,88,616.62 in respect of spirit and Absolute Alcohol cleared during the period from 1-3-1986 to 28-2-1989. The Collector, Central Excise, under the impugned order confirmed the demand for Rs. 5,11,349.47 ps only on Absolute Alcohol, imposed a penalty of Rs. 1 lakh on the appellants and dropped the demand in respect of rectified spirit holding that Absolute Alcohol having strength 99.5% and above was considered suitable for being used as fuel for spark ignition engines and was chargeable to excise duty under Heading 22.04 of the Schedule to the Central Excise Tariff Act and that the extended period of limitation was applicable as they did no....

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....ned product, the extended provision for issuing show cause notice for demanding duty cannot be invoked. He relied upon the decision in the case of Pushpam Pharmaceuticals Co. v. C.C.E. - 1995 (78) E.L.T. 401 (S.C.) in which the Supreme Court held that "where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done, does not render the suppression". Reliance was also placed upon the decision in the case of C.C.E. v. Chemphar Drugs & Liniments - 1989 (49) E.L.T. 276 (S.C.) in which it was held that in order to make a demand for beyond a period of six months "something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate ....

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....sification lists effective from 18-5-1987 and effective from 17-3-1988. The Appellants had made a disclosure of their manufacturing the Absolute Alcohol which according to them was not excisable. There is no force in the case of the Department that the appellants ought to have given complete content of ethyl alcohol. Non furnishing of these details cannot be regarded to be suppression of facts so as to warrant invokation of the extended period for issuing the show cause notice. If the Department was not satisfied or desired to check up the impugned product, nothing prevented them to take a sample and get it tested. It has been held by the Appellate Tribunal in the case of ICPA Health Products P. Ltd. v. C.C.E. - 1998 (77) E.L.T. 469 (Tribun....