2002 (5) TMI 138

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....impugned Order and whether the extended period of limitation under Section 11A(1) of the Central Excise Act is invocable for demanding the duty of Excise. 2. Shri J.P. Kaushik, learned Advocate, submitted that the Appellants manufacture various grades of ABS Resins; that all the grades contain Acrylonitrile, Butadiene and Styrene as a major raw material which are predominant by weight in all the grades; that a show cause notice dated 2-5-2001 was issued to them for demanding Central Excise duty for the periods from April, 1996 to February, 1997 and June, 1998 to February, 2000 on the ground that the products manufactured by them were wrongly classified under sub-heading 3903.30 and were classifiable correctly under sub-heading 3903.90 as t....

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.... under Rule 57G of the Central Excise Rules in respect of various raw materials used by them in the manufacture of various grades of ABS Resins; that the declaration clearly establishes that apart from ABS they had been using many other chemicals in manufacture of ABS Resin and as such it cannot be claimed by the Revenue that the fact of using other chemicals was suppressed from the Department. 3. The learned Advocate, further, referred to their letter dated 12-12-94 addressed to the Range Superintendent in which it was mentioned that they were having 109 grades and around 200 colours; their main raw materials are Acrilonitrile, Butadiene and Styrene; that with these three basic raw materials they were using more than 100 chemicals to prod....

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..... [2002 (139) E.L.T. 423 (Tribunal) = 2002 (48) RLT 78 (Cegat)] wherein the Tribunal dismissed the appeal filed by Revenue holding as under : "…............ in view of the fact that the Commissioner before dropping the show cause notice has gone into the factual position and has correctly held that the classification list has been approved finally and the RT-12 assessments were also finalized and if they had any doubt about the nature of the goods, it was for the department to have taken any representative sample and sent it to the chemical examiner for test, before approving the classification list." 4. Countering the arguments, Shri A.K. Jain, learned SDR, submitted that the Appellants had never disclosed the chemical composition of t....

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....dvocate, by holding that "A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used have to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not render it suppression." In the instant matter we observe that the Appellants, besides filing the classification lists which have been ....