TaxTMI 
TaxTMI 
TaxTMI 
2011 (1) TMI 801
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.... 2. The brief facts are that the Appellants had been availing exemption under Notn.No.68/71-CE dated 29.05.1971, under clause (i) claiming their LDPE Films to be 'flexible' and such exemption was being allowed. 2.1 With effect from 25.11.1978, an Explanation to Notification No. 68/71-CE was added, providing meaning to 'Flexible' & 'Rigid'. With insertion of this Explanation, exemption was restricted inter-alia to Flexible Films, in accordance with the meaning assigned thereto. 2.2 By letter dated 5.2.1979, Range Supdt. asked the Appellants to inform him as to which of the products manufactured by them would be exempt and which would be chargeable to duty, in view of amending Notification dated 25.11.1978. The Appellants, vide their letter dated 31.3.1979, informed that amending Notification dated 25.11.1978 does not affect their case, as their products do not fall under the purview of Explanation inserted. A sample of the film was also submitted to the Supdt. 2.3 Notn.No.231/82-CE dated 23.10.1982 was issued exempting Polyethylene films of thickness not exceeding 0.25 mm from levy of duty. 2.4 By SCN dated 1.1.1983, Supdt. proposed to reco....
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....admitting of change in figure without breaking and yielding to pressure, pliable, pliant. 3.3 That Notn.68/71-CE, prior to its amendment on 25.11.1978, was considered by the Hon'ble Bombay High Court, in the case of Mechanical Packing Industries Pvt. Limited v/s. G.L. Nangia and Others, reported in 1981 ELT 144 (Bom), wherein it was held that in the absence of meaning assigned to the words `Rigid' and `Flexible', the Authorities were obliged to ascertain the ordinary or dictionary meaning. 3.4 That in an identical case, interpreting the very same Notn.68/71-CE, for the period 1.4.1978 to 25.11.1978, Hon'ble Tribunal, in the case of CCE, Guntur v/s East West Packaging Ltd., vide Final Order No.111/91-C dated 4.2.1991, following the ratio of Hon'ble Bombay High Court in Mechanical Packing Industries (supra) and other judgments of Tribunal, has held that exemption under Notn.68/71-CE, would be available to PTFE sheets, as they were flexible in commercial parlance and also held that, in any case, extended period was not invocable, in view of issue of Notn.208/84-CE, dated 16.10.1984 under Section 11C, as, such 11C Notifications are issued based on the prevalent practice of non-levy ....
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....rder-in-Original, for deciding against the Appellants. Likewise, recording of the statement of the Appellants, Managing Director, after issue of Show Cause Notice and filing defence reply, and issuing addendum to SCN for invoking extended period is not permissible. 3.9 That the Appellants, by their letter dated 1.2.1983 and 18.7.1983, requested for retest, which is their statutory right under Rule 56(4) of CER, 1944, which was not acceded to by the Ld. Commissioner. 3.10 That Explanation inserted from 25.11.1978 would have prospective effect, for which support was drawn by the Ld. Counsel from sub-section (2A) to Section 5A of CEA, inserted from 11.5.2002, empowering Central Govt. to issue Explanation to any Notification, within one year from the issue of Notification and such Explanation would have effect from the date of Notification. Further, CBEC, vide its Circular No.70/2003-Cus dated 6.8.2003, has clarified that Explanation inserted under Notn.No.25/99-Cus would have prospective effect. 3.11 That extended period is invocable only when there is positive act, other than mere inaction failure on the part of the manufacturer based on the following judgments: ....
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....ceding period also, which gets substantiated from the provisions of Section 11C. Further, any curtailment of the rights, by insertion of an Explanation, would have prospective effect, as held by the Hon'ble Supreme Court in the case of State of Punjab & Ors Vs. Bhajan Kaur & Ors, reported in (2008) 12 SCC 112, and other judgments. 7. Heard both sides. 8. After hearing at length both sides, we observe that the ld. advocate has argued on merits and as well as on limitation on saying that the extended period of limitation is no invocable in the facts and circumstances of the case. We further observe that in this case investigation was started against the appellants by the Range Superintendent on 5.2.79 after amending Notification dated 15.11.78 to Notification no. 68/71-CE dated 29.5.71 came into force. Thereafter a show-cause notice was issued on 1.11.1983 proposing to recover duty on clearance of LDPE films during the period 1.1.1978 to 28.2.1982. During the period of investigation, Notification 231/82 was also issued exempting polyethene films of thickness not exceeding 0.25 mm from levy of duty. In fact the dispute has arisen when the ....
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....ciding by any forum such as Appellate Tribunal/High Court/Supreme Court or acceptance by both sides mutually, thereafter, if any act of clearance of goods by the assessee taking wrong benefit of the Notification, shall amount to suppression. The said issue has been dealt by this Tribunal, in the case of East Coast Packaging Ltd. (supra) wherein in the similar said facts, the Tribunal has held as under:- 'On the position of limitation, ld. advocate has drawn attention to the fact that in the instant case a Notification under Section 11C has been issued admitting thereby a general practice of assessment from 25.11.1978 regarding the treatment to these sheets being given as flexible sheets. In these facts and circumstances and admission of this general practice in the country by the Government itself no allegation of wilful suppression or mis-statement of facts can be laid against the respondents. He has drawn in particular attention to para 8 of the Tribunal's judgment which states as under:- "From this, it is clear that the general belief in the trade was that no duty was payable on the plastic sheets of the type manufactured by the appellants was recognised by the Gov....