2010 (3) TMI 716

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....made of knitted or crocheted textile fabrics. The charge found against the appellants is that during the period 26-9-2002 to 5-1-2003, the appellants had cleared its finished goods wrongly availing benefit of Notification No. 15/2002-C.E., dated 1-3-2002. The lower authorities found that the exemption extended to articles of apparel made of knitted or crocheted textile fabrics under the Notification No. 15/2002-C.E. was, inter alia, subject to the condition that knitted or crocheted fabrics used in the production of articles of apparel had suffered appropriate duty and the manufacturer had not taken Cenvat credit of the duty paid on the inputs. Notification No. 15/2002 had also extended exemption to knitted or crocheted fabrics subject to c....

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....pugned goods. It was for the department to prove that the impugned goods were not eligible for the exemption availed for the reason that the inputs had not suffered appropriate duty of excise. The notification contained an explanation to the effect that the manufacturer was not required to produce any evidence to show that the fabrics had suffered duty in order to enjoy the exemption. The appellants relied on the Apex Court's decision in the case of Anand Nishikawa Company Ltd. v. CCE [2005 (188) E.L.T. 149 (S.C.)] wherein it was held that when facts are known to both parties, 'omission by one to do what he might have done not that what he must have done would not render it suppression. It was also held that mere failure to declare would no....

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....lants were not entitled to exemption as per the notification. He also observed that in the Nizam Sugar Factory case [1999 (114) E.L.T. 429 (Tri.-LB)], the Larger Bench of the Tribunal had held that knowledge of the Department of a fact had no relevance to determining the time limit applicable to cases for issue of notice under Section 11A(1) of the Act and that the limitation of five years under the said Section 11A(1) was available even when the Department had knowledge about suppression, fraud etc. 3. We find that as rightly argued by the appellants citing the judgment of the Apex Court in the case of Anand Nishikawa Company Ltd. (supra), the assessee not declaring that it had been manufacturing articles of apparel using knitted an....