2000 (1) TMI 207

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....Notification No. 163/67, dated 21-7-1967. 2. Shri M. Chandrasekharan, learned Senior Advocate, submitted that on merit the issue has been decided by the Appellate Tribunal against the Appellants in the case of M/s. Hindustan Newprint Ltd. v. C.C.E. Cochin, Final Order No. 970/99-C, dated 30-9-1999 denying the benefit of Notification No. 163/67, as amended, since the newsprint manufactured by them did not contain mechanical wood pulp amounting to not less than 50% of the fibre content. He, submitted that the entire demand is hit by time limit specified in section 11A of the Central Excise Act; that the show cause notice was issued to the Appellants on 21-9-1989 for demanding the duty for the period from 1-3-1986 to 29-2-1988; that in....

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....t that the Tariff had undergone a change on 1-3-1986 would not entitle the Department to allege suppression or wilful misstatement as the facts on the basis of which the demand was sought to be sustained were within the knowledge of the Department since long and he relied upon the decisions of the Apex Court in the case of C.C.E. v. Chemphar Drugs and Liniments - 1989 (40) E.L.T. 276 (SC) and C.C.E. v. H.M.M. Ltd. - 1995 (76) E.L.T. 97 (S.C.). The Learned Senior Counsel also mentioned that in Hindustan News Print case, Supra, also the Tribunal set aside the demand being time barred. 3. Countering the arguments, Shri K. Srivastava, learned SDR, reiterated the findings of the Commissioner to the effect that in reply to Inspector's let....

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....he paper manufactured by the Appellants as per the decision of the Tribunal in Hindustan Newsprint's case, as fairly conceded by the learned Senior Counsel also. The issue to be decided by us is whether extended period of limitation is invokable in the facts of the present matter. For invoking extended period of five years limitation, duty should not have been paid, short levied or short paid or erroneously refunded because of any fraud, collusion, or wilful misstatement or suppression of facts or contravention of any provisions of the Act or Rules. These ingredients postulates a positive act and as such failure to pay duty is not necessary due to suppression or wilful misdeclaration, etc. It is not disputed by Revenue that as early as in 1....