9911796707
TMI Blog1999 (8) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... . The common representative for the appellants says that he is not pressing the appeal in so far as it relates to the findings in the order of the Collector for duty on three different counts. These counts are non accountal of finished products in the RG-1 register before April, 1988 duty demanded on the products CSM-70 and differential duty on organic surface active agent for November and December, 1989. He says that, the assessee's appeal, therefore is limited to duty on the other three counts. He contends that the duty has been demanded on the finished product, organic surface active preparations manufactured and cleared by the assessee for the period from December, 1987 to November, 1988. The Collector has denied benefit of notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to avail of notification 101/66 for the finished product manufactured. These classification lists had been approved and the RT-12 returns filed by the appellant for the period for which the duty is being contested also had been approved. The department was thus aware of the fact that the appellant simultaneously availed of both these notifications. It availed of notification 217/86 in respect of the organic surface active agents, which it manufactured in its plant. From the approval granted, it would be clear that the department was aware that these surface active agents would be captively consumed in the manufacture of finished product in the appellant's factory. These finished products would be nothing other than the surface active prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions would automatically exclude the applicability of the other. By not clearly indicating the products in respect of which the assessee intended to avail of notification 217/86 and by not indicating that these organic surface active agents would be used in the manufacture of emulsifiers and other such preparations for which exemption was to be claimed under notification 101/66, the appellant is guilty of suppression and the extended period is rightly applied. He contends that the notice to show cause spell out there is some reasons for applying the extended period. 5. There can be hardly any doubt that the assessee could not avail the benefit of notification 217/86 in respect of the organic surface active agents while at the same time a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Now, in the two classification lists, the appellant had signified its intention to avail of both the notifications 101/66 and 217/86 simultaneously. The department, which ought to have fully known that both these notifications would not apply to the same product manufactured in line of manufacture, and approved classification lists. It is these classification lists in accordance with which the goods were cleared during the period in question. Further, from the RT-12 returns filed with the department, the department would have been aware that the appellant would have availed of notification 101/66 in respect of finished products manufactured by the appellant out of the surface active agents on which no duty had been paid by virtue of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it precludes the applicability of the other. The fact of the appellant availing of both the notifications simultaneously by virtue of the approved classification lists and the RT-12 returns and the fact that notifications 101/66 was being availed of in respect of finished product made out of the inputs which had been cleared duty free under 217/86 would have been clearly known to the department. The Supreme Court judgment cited by the appellant is relevant in this case. Where the department knew that appellant was availing of these products and yet done nothing to stop it availing them. It cannot be later on turn around and say that these facts had been suppressed. As the Court said where facts are known to both the parties the omission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice nor the order of the Collector disclose reasons for imposition of penalty on the other appellants. Each of them, except Prabhakar Shetty as we have said, was a director at some point during the period for which the demand has been issued. For the provision of section 209A to apply, it will have to be shown that each of them dealt with any of the manner specified in the rule, the goods knowing or having reason to believe that they were liable for confiscation. Neither the notice or the order spell out the presence of the factor on the basis of which it can be concluded that this knowledge or reason to believe exists. Accordingly we hold that the penalty is not imposable on these appellants. 12. Appeal of the assessee allowed in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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