2016 (10) TMI 679

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....her unit this Tribunal vide Order No.A/10893/2016, dt.31.08.2016 considered the applicability of Rule 16 of CER, 2002 and decided the issue on merit in favour of the Revenue whereas on limitation the appeal was decided in favour of the Appellant-assessee. The Ld Advocate submits that in the present case, the show cause notice was issued to them on 27.10.2006 for the period from 01.10.2001 to 07.12.2005 and major portion of the demand is barred by limitation. 4. The Ld AR for the Revenue reiterated the findings of the Ld Commissioner (Appeals). 5. This Tribunal on similar facts and facts and circumstances observed as under: "6. I find that the Appellant had received in their factory the defective duty paid goods for remaking, ....

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.... under sub-rule (1) and in any other case the manufacturer shall pay duty on goods  received under sub-rule (1) at the rate applicable on the date of removal and on the value determined under sub-section (2) of section 3 or section 4 or section 4A of the Act, as the case may be. [Explanation. - The amount paid under this sub-rule shall be allowed as CENVAT credit as if it was a duty paid by the manufacturer who removes the goods.] (3) If there is any difficulty in following the provisions of sub-rule (1) and sub-rule (2), the assessee may receive the goods for being re-made, refined, re-conditioned or for any other reason and may remove the goods subsequently subject to such conditions as may be specified by the [Prin....

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....rly, in the case of Pushpam Pharmaceuticals Company Vs Collector of Central Excise, Bombay [1995 (78) ELT 401 (SC)], it was held that mere omission to disclose the correct information would not amount to suppression of facts unless there was a deliberate attempt made to escape the payment of duty. Where facts are known to both the parties, it cannot be held that there was suppression of facts. It was observed in Para 4 as follows:- "4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances m....