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TMI Blog2000 (3) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... period from 1990 to 1994. Thus, the demands are for the extended period in terms of the proviso to Section 11A of the Central Excise Act. The appellants defence is on the ground that the demands were time barred. We read Section 11A including its proviso for a proper understanding of the defence :- Section 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in these cases because in those cases the noticees had manufactured the goods out of the flats and not from the bars as in these cases. In view of this I hold that the extended period has been correctly invoked in all these cases. 3. Now, the appellants have submitted that as against the aforesaid charge and findings in the impugned order, the facts of the case were that the departmental authorities were aware of full facts about the raw materials used by the appellants. The appellants M/s. Samana Steels Limited were directed in August 1989 by the Supdt. of Central Excise to take out a central excise licence. Against this, the appellant moved the Punjab Haryana High Court under Civil Writ Petition No. 10438 of 1989. In the written statement filed on behalf of the central excise department, it was stated that the appellants was manufacturing his products from bars below 3mm in thickness and not from strips/flats. Still the department did not take any action to issue notice for recovery of duty during the period of pendency of the writ petition even though there was no stay order in the matter from the High Court. This was because the department was contending that the produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t paying any duty. M/s. Classic Ispat was established only in 1993 while the other units were in existence prior to that and they were all clearing the same goods without payment of duty. They have relied on the decision of the CEGAT in the case of K. Selvaranjan Sons v. CCE, Madras reported in 1997 (92) E.L.T. 133 (T) in support of this submission. 6. Learned DR submitted that in these cases, the appellants have not taken central excise licence at all and they had also admitted that the goods received by them were invoiced as bars. Therefore, there is no dispute that these are cases involving violation of rules and suppression of facts with intent to evade payment of duty. 7. We have perused the records and considered the rival submissions. We find that all except M/s. Classic Ispat Pvt. Ltd. had filed writ petitions in the High Court opposing the levy of central excise duty and there were no stay orders also from the High Court. All the same, no action was taken by the departmental authorities to issue show cause notice within the time limit prescribed in the Central Excise law to recover the duty. The Department was taking conflicting stands as to whether the goods were fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas the appeal filed by the Central Excise department against the decision of the Tribunal delivered in the case of Calcutta Steel Industries has been dismissed in default i.e. for non-prosecution. Therefore, it is the contention of the noticee that they had been manufacturing the pipes and tubes of steels out of the inputs specified in Notification No. 202/88 i.e. Flats of thickness not exceeding 5mm. 18. The point for determination that arises before me is whether the noticees have manufactured the pipes and tubes of steels out of the inputs specified in Notification No. 202/88-CE dated 20-5-1988 or not and had availed of the benefit of notification correctly or not. It is not disputed that there exists two decisions of the Hon ble Tribunal on the classification on the inputs involved in these cases. In the case of Calcutta Steel Industries (supra) the Hon ble Tribunal has held that the inputs used by the noticees are the bars whereas in the case of Garg Strips Re-Rolling (P) Ltd. has held that the product involved (inputs) is the flat/strips. What is relevant here is the exact nature and the description of the inputs purchased by the noticees. The decisions of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined was that what was actually received and consumed by the noticees for the manufacture of the final product. It is not the case of the noticees that they had not consumed the purchased M.S. bars in the manufacture of pipes and tubes. In view of the above I hold that the benefit of the notification 202/88-CE was not available to the noticees in case of the pipes and tubes manufactured out of the M.S. bars/hot rolled bars of non-alloy steels. 8. It is clear from the above discussions in the impugned order that the non-levy of duty in these cases was not the result of fraud or suppression of facts or violation of rules with intent to evade payment of duty but because of conflicting views on classification in the department itself. That explains why the notice itself attributes the non-levy to malfeasance and misfeasance on the part of the appellants and not fraud, suppression of facts etc. with intent to evade payment of duty mentioned in the proviso to Section 11A of the Central Excise Act. In such a situation, extended period for recovery of duty cannot be invoked. It is settled law that where proviso to Section 11A is sought to be invoked, the authorities should specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X
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