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TMI Blog1994 (11) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... eir factory, dolomite , and processed it into burnt dolomite (calcined dolomite), for captive consumption. The Collector of Central Excise, Raipur observed that the assessee had suppressed the facts. He confirmed a demand of Rs. 18,231/- for the period 20-3-1990 to December, 1990, and imposed a penalty of Rs. 10,000/- under Rule 173Q of the Central Excise Rules, 1944 (hereinafter referred to as the Rules ). 3. The matter was posted for hearing on 9-9-1994 when Shri Y.N. Chopra, Consultant appeared for the appellant Shri Sharad Bhansali, SDR, represented the respondent. 4. Shri Y.N. Chopra, the learned Consultant stated that the demand in this case was time-barred. In the show cause notice dated 6-12-1991, the duty had been demanded fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was claimed that the goods were covered by the exemption provided under Notification No. 217/86-C.E., dated 2-4-1986. 5. Shri Sharad Bhansali, the learned SDR stated that the relevant note 2 in chapter 25 of the Schedule to the Central Excise Tariff Act, 1985, (hereinafter referred to as the `Tariff ), was substituted with effect from 20-3-1990, but added that this note was of a clarificatory nature. On page 5 of his order, the adjudicating Collector of Central Excise, Raipur has discussed the contention of the assessee with regard to limitation. The learned SDR relied upon the Supreme Court s decision in the case of Jaishri Engg. Company (Private) Limited v. C.C.E., 1989 (40) E.L.T. 214 (SC), wherein it has been held that penalty under R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in the case of C.C.E. v. Mahavir Minerals Store Supply Company, 1988 (38) E.L.T. 171 (Tribunal) wherein it has been held that crushing of dolomite into powder and chips does not bring into existence a new commodity, as envisaged by Section 2(f) of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act ). 7. We have carefully gone through the facts and circumstances of the case and have given our due thought and consideration to the submissions made by both the sides. 8. Upto 19-3-1990, the Heading No. 25.05 of the Tariff read as under :- Mineral substances, not elsewhere specified (including clay, earth, colours, natural abrasives, sulphurs, slate and stone), lime plasters with a basis of calcium sulphate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which have been washed (even with chemical substances, eliminating the impurities without changing the structure of the product), crushed, ground, powdered, lavigated, sifted, screened or concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallisation), but not products that have been roasted, calcined, obtained by mixing or subjected to processes beyond that mentioned in each heading or sub-headings. As dolomite, whether or not calcined, was specifically mentioned in sub-heading No. 2505.40 of the Tariff, the dolomite that has been calcined was not hit by exclusion and came to be covered by Heading No. 25.05 of the Tariff. 10. Further, the goods as received by the appellant did not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Thus, while on the question of process of manufacture and dutiability, the appellants have no case, we find that on the question of limitation the facts and circumstances do not justify invoking the larger period of limitation. The show cause notice was issued on 6-12-1991. It is seen that some information on the subject was called from the assessee on 6-2-1991. The duty was demanded for the period March 1986 to Dec., 1990. The goods involved are burnt dolomite (calcined dolomite). As discussed above, prior to 20-3-1990, there was no specific entry for dolomite, and further the products calcined were specifically excluded from the coverage of Heading No. 25.05 of the tariff. The appellant had submitted before the Collector of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period from March, 1986 to December, 1990. There was allegation that the noticee have wilfully suppressed the facts from the Central Excise department with an intention to evade payment of Central Excise duties on burnt dolomite (calcined dolomite) during the period from March, 1986 to December, 1990". The Adjudicating Collector has modified the allegation of suppression from 20-3-1990 only. The show cause notice is dated 6-12-1991. Thus even this demand is beyond the normal period of limitation. 13. Taking all the relevant considerations into account, we find that the demand is hit by limitation and there are no grounds to allege suppression to justify demanding Central Excise duty for the extended period, beyond the normal perio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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