TaxTMI 
TaxTMI 
2026 (6) TMI 1419
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....the Central Excise Act, 1944 (for short 'the Act') raising the following proposed questions of law, arising out of the order dated 5th June, 2024 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (for short 'the CESTAT') in Excise Appeal No.11761 of 2019-DB:- "(i) Whether in the facts and circumstances of the case, the Appellate Tribunal was correct and justified in holding that there is no suppression of facts on the part of the taxpayer? (ii) Whether in the facts and circumstances of the case, the Appellate Tribunal was correct and justified in setting aside the demand for the extended period holding that it is liable to be set-aside on the ground of time-barred? (iii) W....
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....m one M/s. Ginni Filaments or from its own unit. The liquid formulation is prepared within the factory by mixing the de-mineralized water with various ingredients including fragrances. 3.2. The respondent-assessee classified wet wipes under Chapter Sub-heading 3370.90 of the First Schedule to the Central Excise Tariff Act, 1985 (for short 'the Act, 1985') up to August, 2009 as other perfumery, cosmetic or toilet preparations, not elsewhere specified or included. Accordingly, the respondent-assessee discharged the Central Excise duty at the rate of 10% on the value determined under Section 4A of the Act i.e. MRP less abatement by calculating the value at 65% of the MRP of the goods after claiming abatement of 35% in view of the Sr. No. 37....
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....ly, 2015, the respondent-assessee agreed to act as a toll manufacture of wet wipes for M/s. Future Consumer Enterprise Limited for a period of twelve months. Thus, even after sale of wet wipes to M/s. Future Consumer Enterprise Limited, the respondent-assessee continued to manufacture and clear wet wipes on behalf of the said agreement till July, 2016 availing the exemption under Notification No. 30/2004-CE. 3.6. The Excise Department conducted EA-2000 audit during March, 2014 to October, 2014 for the period from March, 2012 to December, 2013 and final Audit Report was issued to the respondent-assessee on 10th November, 2014 wherein, it was observed that the respondent-assessee had wrongly classified wet wipes under Chapter Heading 5603,....
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....s made by the assessee, vide order dated 16th April, 2019, confirmed and quantified the demand of Central Excise duty of Rs. 5,38,76,124/- along with interest and equal penalty under Section 11AC of the Act. 3.11. Being aggrieved, the respondent-assessee preferred an Appeal before the CESTAT. 3.12. The CESTAT, after considering the submissions made on behalf of the respondent-assessee, only examined the aspect as to whether the demand is sustainable or not on the ground of limitation, as the extended period of limitation, provided under Section 11A(5) of the Act, was invoked by the Revenue. 3.13. The Tribunal therefore, in view of the fair concession on behalf of the respondent-assessee to the effect that if the demand is not susta....
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....sification, claim of exemption notification in respect of their product wet wipes was categorically declared before the department. Therefore, there is no suppression of facts on the part of the appellant with intent to evade payment of duty. Moreover, all these facts were on record while conducting EA-3 audit by Central Excise department during March 2014 to October 2014 for the audit period March 2022 to December 2013. The dispute of classification was raised in audit vide Audit Report No. 327/2013-14 dated 10.11.2014 and on that basis further investigation was carried out by Preventive Wing and thereafter the show cause notice came to be issued on 08.08.2018. It is also observed that prior to the aforesaid audit, the appellant have been ....
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....015(322) ELT 819 (SC). 6.5 We find that in view of the above scanned letters filed by the appellant to the department dated 12.08.2009 and 26.08.2013, it cannot be said that department was not aware of the facts of the classification of wet wipes under Chapter 5603 by the appellant. It is well settled by the following decisions of the Hon'ble Supreme Court that when the facts are known to both the parties, allegation of suppression of facts with intent to evade, payment of duty cannot be sustained:- (a) Pushpam Pharmaceuticals Company vs. CCE -1995(78) ELT 401 (SC) (b) Anand Nishikawa Company Limitedvs. CCE -2005 (188) ELT 149 (SC) (c) Continental Foundation Jt. Venture vs. CCE - 2007 & 216) ELT 177 (....