9911796707
TMI Blog1999 (5) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter 30 of the Central Excise Tariff Act, 1985. Appellants filed classification list in respect of control samples of P & P Medicaments and claimed exemption under Notification No. 171/70 dated 21-11-70. 3. A show cause notice was given to appellants alleging that appellants were not entitled for the benefit of Notification No. 171/70-C.E. as they had not fulfilled the conditions of the notification. The Collector of Central Excise vide impugned order confirmed the demand on the ground that samples were not distinctly different from the regular trade packing. A penalty of Rs. 5,000/- was also imposed under 173Q of Central Excise Rules. 4. Learned Advocate appearing for appellants submits that appellants had clearly complied wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packed in a form distinctly different from regular trade packing and also be marked sample not for sale. He submits that samples in question were not distinctly packed as from the trade packing, hence the conditions of notifications were not complied with. He further submits that the appellants supressed the manner of drawal, Packing & Preserving of Control sample as the same was not disclosed to the department. Hence the extended period of limitation is rightly invoked in the present case. 8. Heard both sides. 9. The contention of the appellants is that whole of the demand is time barred. Show cause notice was issued on 27-3-92 for the period 1-4-87 to March, 1991. The appellants filed the classification list claiming the exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tine removal or suppression of facts or wilful mis-statement, when they filed classification list and R.T.-12 Returns regularly and the same were approved. They were not expected to give more details in the above documents as they were under the belief that they satisfied the condition of Notification by marking the sample packs with the words "Physician's samples, not for sale" although such belief was not correct." 10. In view of the above discussed facts we find that ratio of the above decision of the Tribunal is fully applicable in the present case. Hence without going into the merit of the case we find that whole of demand is time barred. 11. Hence we set aside the impugned order and allow the appeal. Sd/- (S.S. Kang) Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a presumption but does not constitute an evidence unless, of course, the samples were enclosed with the classification list or any other communication for that matter. In the classification list itself one may or may not claim the benefit of a particular notification but if he claims the fact that he satisfies all the required conditions is a matter regarding which the burden initially lies on the claimant to show by production of necessary evidence that his claim was justified. Once an assessee has forwarded the samples and then the Department sleeps over it and does not care to verify then it has to face the consequences. Further, in my opinion, claiming the benefit of a notification but not complying with its conditions consciously or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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