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TMI Blog1990 (1) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived by the authorities on 21-7-1987. The appellants thereafter asked for re-test of the sample and the earlier text result of the Chemical Examiner was confirmed. Show cause notice was issued to the appellants on 29-12-1987 as to why differential duty payable for the yarn on account of the difference in the count for the period from 2-6-1987 to 21-9-1987 should not be demanded. The learned Collector invoked the longer period alleging suppression. The total duty demanded was Rs. 40,788/-. 2. The learned Consultant appearing for the appellants pleads that the fact regarding difference in the count was known to the Department on 21-7-1987 when the report of the Chemical Examiner was received and in spite of that show cause notice was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some reason if the test result was delayed, in that case, could it be said that the demand is barred by limitation. 4. The learned Consultant in support of his plea has cited the case of Electrical Mfg. Co. P. Ltd. v. CCE, Calcutta - reported in 1989 (40) E.L.T. 472 (Tribunal) the relevant portion of which is reproduced below for convenience of reference: "To mount a deception with wrongful motives of evading duty, there must be a concealment of a fact or a material known only to the concealer; then only is he deceiving with motive to achieve unlawful and illegal profit thereby. It is not a concealment to fail to declare a fact well known, a fact that that should be known to the other person because then the deception does not succeed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their test mechanism and they could have been bonafide under the impression that they have been correctly following the count as declared by them, based on their laboratory report notwithstanding the fact that on actual test, the count turned out to be otherwise. The Supreme Court in the case of Chemphar Druges & Liniments v. Collector of Central Excise - reported in 1989 (40) E.L.T. 276 (SC) has held that "extended period of five years applicable only when something positive other than mere inaction or failure on the part of manufacturer is proved and that conscious or deliberate withholding of information by manufacturer is necessary to invoke larger limitation of five years". The authorities in the present case have not done any inve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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