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TMI Blog2009 (6) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Consultant for the applicant submitted that the applicant's understanding was that the factory was in the rural area and secondly, the fact that the appellants were going to produce branded product was informed in advance to the respondent under letter dated 10-9-2004 and therefore, there was no case of suppression of facts. He placed reliance in the decisions of the Supreme Court in the case of Continental Foundation Jt. Venture v. C.C.E., Chandigarh-I reported in 2007 (216) E.L.T. 177 (S.C.), Nestle India Ltd. v. C.C.E., Chandigarh reported in 2009 (235) E.L.T. 577 (S.C.) and Pushpam Pharmaceuticals Company v. C.C.E., Bombay reported in 1995 (78) E.L.T. 401 (S.C.) in support of the contention that there was no intentional sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions specified under clause 2 of the said Notification. 6. The Apex Court in Continental Foundation Jt. Venture had held that the expression "suppression" in Section 11A of the Central Excise Act, 1944 is accompanied by very strong words 'fraud' or 'collusion' and therefore, should be strictly construed. It is further held that mere omission to give correct information is not a suppression of fact unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble when there is some positive act other than mere inaction or failure on the part of the manufacturer. There must be conscious or deliberate withholding of information by the manufacturer to invoke larger period of limitation. As already seen above though, the appellant knew that they were going to produce branded product and therefore, could not enjoy the exemption as the factory was situated in the notified area, being so, apart from disclosing the intention under letter dated 10-9-04, it was necessary for the appellant to disclose the said fact in the quarterly returns and non-disclosure thereof was prima facie deliberate and conscious withholding of the required information. 9. In Pushpam Pharmaceuticals Company, the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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