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TMI Blog1997 (12) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. 71/78, dated 1-3-1978 and 80/80, dated 19-6-1980. They were also printing on polyester films which, according to the appellants, were products which were chargeable to nil rate of duty. The appellants were issued a SCN dated 7-1-1994 asking them to show cause why Central Excise Duty amounting to Rs. 10,10,395.65 should not be recovered from them as they had not taken out Central Excise licence for the manufacture of printed polyester films falling under sub-heading 3920.00 and as exemption for clearances of Rs. 15 lakhs in terms of Notification No. 175/86, dated 1-3-1986 had ended on 3-11-1988 and thereafter the clearances were to be affected on payment of duty at appropriate rate. The Department alleged that the appellants had i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the Board s instructions the Meerut Collectorate had also issued a Trade Notice No. 17/89, dated 16-3-1989. In view of this appellants contention is that the demand for the period prior to 20-3-1989 was not maintainable. After giving personal hearing the Collector by the impugned Order-in-Original dated 6-12-1994 held that the process of printing undertaken by the appellants amounted to manufacture as printed plastic films were different in name and character from bare plastic films and for that reason the said goods were excisable. The Collector, therefore, confirmed the demand of Rs. 9,19,672.60 for the period 1-1-1989 to 31-3-1989 and a penalty of Rs. 2.5 lakhs was also imposed. 3. Appearing before us Shri J.S. Agarwal, ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was not levied or short levied due to fraud, collusion, wilful mis- statement or suppression of facts Proviso to 11A(1) allowed extension of this period to 5 years. The exercise of the power to extend the period is hedged on the one hand with the existence of a situation visualised by the Proviso using expressions like fraud , suppression , etc. and on the other hand it should have been with the intention to evade payment of duty. Both these ingredients should exist before the Excise Officer can proceed to take action under the Proviso and to invoke the extended period. Since the proviso extended the period of limitation from 6 months to 5 years, it had to be construed strictly. The initial burden is on the Department to prove that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would attract levy of Central Excise duty has been considered. After examining the process of printing on aluminium foil and its use after printing, the Tribunal had come to the conclusion that foil still remained a foil with the same character and a printed foil did not behave any different from unprinted foil. Printing of foil was, therefore, held not to be a process of manufacture and, therefore, not chargeable to duty. He also drew attention to the Tribunal decision in Ultra Automan Rubber v. Collector of Central Excise, Meerut - 1997 (19) RLT 764 wherein it was held that in case of change of classification demand can be made only from the date of notice. Alternatively, ld. Counsel also contended that if at all it was held that the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing industry. The appellants had failed to produce any evidence to show their bona fides regarding the classification of the product so as to arrive at a reasonable belief that they were not suppressing any information. The appellants had also not produced any records or correspondence with the Department regarding the disputed item during the period in question. Ld. SDR, therefore, submitted that the appellants had deliberately and willfully suppressed and mis-declared the goods with intent to evade payment of duty and the allegation in SCN had been substantiated and the longer period of limitation has been rightly invoked. 5. We have considered the submissions made on both sides. We find that there are two issues raised in the present a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in spite of the Department asking them to do so and the same was supplied only on 12-7-1993. As per the records, according to the Department, the appellants had failed to make payment of duty in respect of clearances of goods beyond the first slab exemption of Rs. 15 lakhs in terms of Notification No. 175/86. The appellants had neither paid the duty nor provided the facts and figures in respect of their manufacture and the sale of the finished goods for the period 1988-89 till 12-7-1993. This, according to the Department, amounted to suppression of information which justified the extended period. We are unable to agree with the findings of the lower authority that printing on duty paid plastic films and sheets would make the product a diff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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