TaxTMI 
TaxTMI 
2022 (3) TMI 402
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.... said products have been classified under Tariff Item 3808 92 90, itemized in the Schedule appended to the Central Excise Tariff Act, 1985. Since inception of the company in 1999, the appellants have been availing the benefits of SSI exemption on the said products. The appellants are also engaged in conversion of indigenous/imported Sulphur lumps/granules into Sulphur powder, by the process of pulverization. Sulphur is a byproduct, emerges during refining of Crude Oil by Refineries and the same is classifiable under Tariff Item 2503 00 10. 1.2 During the disputed period, the appellants have entertained the belief that such conversion activity undertaken by them does not amount to manufacture in terms of Section 2(f) of the erstwhile Cent....
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.... referred to as "the impugned orders"), the appellants have preferred these appeals before the Tribunal, which were registered as Appeal Nos. E/817/2011 and E/1705/2011 respectively. 2. Shri M.H. Patil, learned Advocate appearing for the appellants submitted that the activity of conversion of crude Sulphur lumps/Granules into Sulphur powder would not amount to manufacture, as per the definition contained in Section 2(f) ibid. In support of such submission, the learned Advocate has relied upon the following judgments delivered by the Hon'ble Supreme Court: (i) Osnar Chemicals Pvt Ltd. - 2012 (276) ELT 162 (SC) (ii) Tarpaulin International - 2010 (256) ELT481 (SC) (iii) S.R. Tissues Pvt. Ltd. - 2005 (186) ELT 385....
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.... He further submitted that the entire fact of manufacture of the excisable goods, conversion of Crude Sulphur to powder form was known to the department through exchange of various letters between the appellants and the department. Hence, he submitted that the proviso clause appended to Section 11AC ibid has no applications to the facts and circumstance of the present case for invoking the extended period of limitation. 3. On the other hand, the learned A.R. appearing for Revenue reiterated the findings recorded in the impugned order and further submitted that the issue of manufacture of the disputed goods was not intimated by the appellants to the department and that since such information was gathered by the department through proper e....
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....uiring him to show cause why he should not pay the amount specified in the notice. However, in case of non-levy, short-levy etc., owing to the reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of the Central Excise Act, 1944 or of the rules made there under with intent to evade payment of duty, then in place of normal period of 'one year', the show cause notice has to be issued within 'five years' from the relevant date. 5.3 We find that the learned Commissioner of Central Excise, Belapur vide Original Orders dated 14.11.2011 and 13.12.2011, while adjudicating the SCNs issued to M/s. Sulphur Mills Ltd. and M/s. Standard Chemical Co. Pvt. Ltd. respectively, had held ....
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....oviso clause appended to Section 11A ibid is not the rule, but an exception, which can only be acted upon sparingly, considering the circumstances that really there are glaring evidences to book a case against the assessee by taking recourse to the proviso clause. In such a possible occurrence, the burden of proof entirely lies with the department to prove that the ingredients contained in the proviso to Section 11A are truly justified for invocation of such provision and not otherwise. Thus, considering the overall facts and circumstances of the case, we are of the firm opinion that since there were divergent views expressed between the equal ranking adjudicating authorities in both the cases, the charges of fraud, collusion, willful mis-s....
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....nt through their several other representations, notably dated 09.11.2009, 26.12.2009 etc. on the subject issue, but yielding no results. Thus, on factual analysis of the case, it can safely be concluded that the ingredients itemized in the proviso clause appended to Section 11A ibid have no application in the case of the present appellants for invocation of the extended period of limitation for confirmation of the adjudged demands. 5.5 Therefore, the impugned order dated 24.08.2011, to the extent it has confirmed the duty demand along with interest beyond the prescribed normal period of 'one year' is barred by limitation of time and accordingly, the impugned order is liable to be set aside and thus, we set aside the same and allow the ap....