2007 (7) TMI 142

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....ue on the Assessee for the period August 1995 to September 1996 by invoking the extended period of limitation under proviso to Section 11A of the Central Excise Act/Rule is legally justified on facts of this case or not? The Tribunal by impugned order has upheld the demand holding that it was rightly raised on facts which are found proved. 3. This is how the Tribunal in paras 3 and 4 of the impugned order held while upholding the demand in question; "3. The learned SDR contended that the short levy has taken place be cause of the mis-statement and suppression of facts by the appellants. He referred to declaration under Rule 173-B dated 1st April, 1996 of the appellants wherein it was clearly stated "Exempted because Pharmacopia item".....

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....cable to the facts of the case and also is in accord with judicial precedents governing the field. 7. In our view, it is a clear case of misstatement of facts disclosed by Assessee at the time of declaration for obtaining exemption on the goods and later not adhering to the same while actually manufacturing and clearing the goods for sale. In other words, it was a case where under the garb of exemption obtained by Assessee by making false statement, they were selling the product which were not exempted from payment of excise duty. They were in fact excisable. It is clear from the finding of fact recorded by the authorities below and the same was upheld by Tribunal in the impugned order quoted supra. 8. In our view, therefore, where As....

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....w rather than on facts and that too for the first time. In the second place, learned counsel placing reliance on decisions reported in SCCL-Sarabhai M. Chemicals v. Commissioner of Central Excise, Vadodara -2005 (179) E.L.T. 3 (S.C.); SCCL-Collector of Central Excise v. Chemphar Drugs & Liniments - 1989 (40) E.L.T. 276 (SC); SCCL-Cosmic Dye Chemical v. Collector of Central Excise, Bombay - 1995 (75) E.L.T. 721 (S.C.), SCCL Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay - 1995 (78) E.L.T. 401 (S.C.); SCCL-Collector of Central Excise v. H.M.M. Limited 1995 (76) E.L.T. 497 (S.C.) contended that no case was made out for invocation of power conferred by proviso to Section 11A ibid. We do not agree to this second submissio....