2001 (4) TMI 499

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....irman of respondents' Company asking him as to why penalty under Rule 209A should not be imposed on him. 3. The Commissioner after hearing the respondents found that the case as pleaded before him by the respondents, the show cause notice was hit by time bar on the following grounds : (a) The Classification Lists submitted from time to time were duly approved by the Department without any change; (b) The relevant RT 12 Returns were duly assessed by the Department without any objection; (c) On the same issue, a Show-cause Notice No. 302/90-Adjn., dated 28-9-1990 was issued demanding duty of Rs. 90.20 lakhs for the period September, 1989 to June, 1990. The proceedings initiated under that Show-cause Notice were dropped by Collector of Central Excise, Hyderabad vide his Order-in-Original No. 97/91-Adjn., dated 18-7-1991 based on the Standing Order (Tech) No. 61/91 [C.No. IV/16/274/90-MP1), dated 6-6-1991 of the Hyderabad Central Excise Collectorate which was issued on the authority of the Board's letter F.No. 115/4/91-Cx.3, dated 10-5-1991. (d) Another Show-cause Notice dated 28.1.1991 was issued on the same issue for an amount of Rs. 35.28 lakhs towards ....

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....It was held in the case of Lucas TVS v. Collector - 1989 (41) E.L.T. 267 Tribunal that "suppression means an act of deliberateness". The Commissioner's finding that there was no suppression in this case to be misappreciation of facts and require to be set aside. (iii) There was adequate evidence that substantial expansion was completed by November, 1990, and the assessee requested for re-endorsement of Industrial Licence with the Additional capacity vide their letter DCL : MD : dated 4-10-1990. Depositions of Sri K. Mohan Rao, General Manager (Works), Sri T. Ranga Rao, General Manager (Finance) dated 5-6-1991 confirmed the above position. Even the chairman of Deccan Cements Limited Sri M.B. Raju also gave an interview to News Today highlighting the achievements of substantial expansion. From the above facts it can reasonably be said the only compliance to be done by the assessee is to get re-endorsement done by the Development Commissioner for Cement, Government of India, Ministry of industry, New Delhi which appear to be only formal routine matter. Viewed these facts in the light of proviso to Notification No. 154/90-C.E. i.e. certification of "installed and licensed capacit....

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....ensed capacity" with provision of certification by competent autho­rities either of two capacities. Even clarification issued vide standing order 61/91, chapter 25 (Cements) No. 3/91, dated 6-6-1991 appears to be applicable only to Mini Cement Plants in excess of permissible quota of 25% over and above the installed capacity i.e. 65,000 TPA. Whereas in the present case, the assessee obtained from Department of Industrial Development for an installed capacity of 600 tonnes per day as is evident from the production on dates 16-11-1990/620 tonnes, 20-1-1991/720 tonnes. Hence, clarification issued appears to be applicable only per annum (TPA) criteria but not to per day criteria. (v) The second reliance placed by Commissioner on show cause notice dated 28-1-1991 to prove that the Department was aware of misdeclaration on 28-1-1991 is also not correct, as it was a periodical show cause notice subsequent to period covered by show cause notice 302/90 i.e. July, 1990 to Oct., 1990. These two show cause notices deal with identical issue i.e. production in excess of permissible limits. Substantial expansion scheme was never on issue in these cases, and the facts of such a scheme wa....

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....ssions we find that - (a) the issue involved is eligibility of Notification No. 154/90, dated 1-11-1990. This notification exempts cement "manufactured in a factory of the description specified in column (2) of the Table hereto annexed". The appellants admittedly qualify as a factory described at Serial No. 4 column (2) of this table. The explanatory note below this notification, reads as - "this notification seeks to supercede Notification No. 23/89-Central Excises so as to provide installed capacity limits for units not required to obtain an industrial licence and convert the daily capacity limits into annual capacity limits." We find that there is a Standing Order (Tech) No. 61/91, dated 6-6-1991 issued by Office of the Collector of Central Excise, Hyderabad wherein eligibility under Notification No. 23/89-C.E., dated 1-3-1989 and 134/90-C.E., dated 1-11-1990 has been clarified in the following notes - "Please refer to this Office letters C.No. IV/16/274/90 MP-1, dated 13-3-1991 and 15-4-1991 wherein instructions were issued that the assessments in respect of Cement produced in Mini Cement plants in excess of the permissible quota of 25% over and above the installed cap....