TaxTMI 
TaxTMI 
2007 (5) TMI 1
X X X X Extracts X X X X
X X X X Extracts X X X X
....to show cause as to why Central Excise duty to the tune of Rs.32 should not be demanded and recovered from them in terms of the proviso appended to Rule 49(1) of the Central Excise Rules, 1944 (Rules) read with Section 11A of the Central Excise and Salt Act, 1944 (Act) and as to why penalty should not be imposed on them and the plant and machinery and the manufactured goods should not be confiscated. Cause was shown by the appellant inter alia stating that no excise duty was payable. The said notice was withdrawn stating: "The said Show Cause Notice has been issued without obtaining approval of the proper authority or by the proper officer. Accordingly. Show Cause Notice dated 27-1-94 hereby withdrawn. The withdrawal of the Show Cause Notice is without prejudice to any action including issue of fresh Show Cause Notice which may be taken against M/s. Konkan Railway Corporation Ltd., Ratnagiri (North), Lanjekar Compound, Phansi Baug, Udyamnagar, Ratnagiri of Central Excise Law or any other law of the time being is force." 4. After a long time, namely, on 1-5-1996, another show cause notice was issued on the same premise for the period March 1993 and December, 1994. The extended per....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oticed here in before, was dismissed by the Tribunal. 7. Mr. Venkataraman, learned Senior Counsel appearing on behalf of the appellant would raise two contentions in support of this appeal: (i) That earlier notice having been withdrawn wherein no allegation of suppression had been made, the same could not have been made in the second notice dated 1-5-1996. (ii) In any event, the question as to whether the activities of the appellant would attract excise duty or not having been decided for the first time by a Larger Bench of the Tribunal in Asian Techs Ltd. v. Commissioner of Central Excise, Pane-II [2005 (189) E.L.T. 420] it was not a case where the extended period of limitation should have been invoked. 8. Mr. Gopal Subramanium, learned Additional Solicitor General appearing on behalf of the Union of India, on the other hand, would submit: (i) For construction of the notice dated 27-1-1994, the allegations made therein as a whole must be takan into consideration for the purpose of arriving at a conclusion as to whether a case for suppression had been made out or not. (ii) Withdrawal of the first notice per se would not disentitle the Department from issuing another notice as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat it was not a case where element of suppression extended to apply to extended period of limitation. It is also not a case where the appellant did not plead bona fide. It is furthermore not a case where the Tribunal and consequently this Court, could have arrived at a finding that the appellant took recourse to suppressio veri. 14. Acts of fraud or suppression, it is well settled, must be specifically pleaded. The allegations in regard to suppression of facts must be clear and explicit so as to enable the noticee to reply thereto effectively. It was not the case of the revenue that the activities of the appellant were not known to it. 15. Admittedly, when the first show cause notice was issued, the extended period of limitation was not resorted to. A notice should ordinarily be issued within a period of six months (as the law then stood) i.e. within the prescribed period of limitation but only in exceptional cases, the said period could be extended to 5 years. When in the original notice, such an allegation had not been made, we are of the opinion that the same could not have been made subsequently as the facts alleged to have been suppressed by the appellant were know to them.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llowing the same, hold that there was no suppression of facts on the part of the assessee/appellant." 18. In the said decision, this Court followed the earlier judgment of the Division Bench of this Court in ECE Industries Limited v. Commissioner of Central Excise, (2004) 13 SCC 719 = 2004 (164) E.L.T. 236, wherein it was categorically stated: "6. Appellant was served with a second SCN by the Collector on 16-7-1987 alleging that the appellant was supplying carbon dioxide to another unit as per agreement dated 19-3-1983; that they had not taken necessary licence; had not followed the procedure prescribed under the rules; and had not discharged duty liability. The said SCN covered the period of assessment years 1982-83 to 1986-87. Appellant responded to the second SCN and took the plea that the SCN under consideration was practically a repetition of the allegations contained in the SCN dated 28-2-1984 and for the period Apr 1982 to September, 1982 the department had raised demands under two different SCNs. It was pointed out that carbon dioxide in the impure form was not marketable as it also contained carbon monoxide in lethal proportions. it was contended that they were under bon....