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TMI Blog2011 (6) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the goods were liable to duty and he was required to take out a licence - As is well settled, claim of wrong classification or benefit of notification by itself cannot be held to be a suppression or mis-statement so as to invoke the longer period of limitation - Appeal is allowed - E/2723 of 2006 - A/1025/2011-WZB/AHD - Dated:- 10-6-2011 - Mrs. Archana Wadhwa, Dr. P. Babu, JJ. For Appellant : Shri Anand Nainawati, Advocate For Respondent : Shri J.S. Negi, SDR Per : Mrs. Archana Wadhwa; After hearing both the sides, we find that the appellants are engaged in the manufacture of Water Treatment Plant, RO Plant etc. falling under Chapter heading 8421.10 of Central Excise Tariff Act, 1985. During the period May ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order Commissioner (Appeals) had granted them the benefit of limitation by observing that the appellants had filed ER-1/ RT-12 returns, during the said period and as such, cannot be held guilty of any suppression. No appeal was filed by the Revenue against the said order of Commissioner (Appeals). As the part of the demand was within limitation and was upheld by Commissioner (Appeals), the appellant came before the Tribunal against the said part, when their appeal was rejected on merits by the above referred final order of the Tribunal. 5. Learned advocate submits that an identical situation prevails in the present appeal also. He submits that the appellant had filed ER-1 returns during the relevant period as is clear from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I 1992 (61) ELT 413 (Guj) has held if an information not required to be supplied under the law is not supplied, the same cannot be said to be suppression of facts. More so in this case the department has earlier issued show cause notice dated 27.5.2003 demanding 8% of total price excluding taxes on account of clearance of water treatment plant/R.O. Plant at nil rate of duty under Sr. No. 237 of Notification No. 6/2002-CE for the period May 2002 to November 2002. Hence the department was fully aware that appellants have cleared water treatment plant/RO Plant at nil rate of duty in terms of Sr. No. 237 of Notification No. 6/2002-CE. The Hon ble Supreme Court of India in case of Padmani Product vs. CCE 1998 (43) ELT 195 (SC) has held that mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed their product to avail the benefit of exemption. However, there is no reference stands made to any positive act on the part of the appellant to deliberately adopt the classification, as claimed by them. As is well settled, claim of wrong classification or benefit of notification by itself cannot be held to be a suppression or mis-statement so as to invoke the longer period of limitation. Inasmuch as the entire demand is beyond the period of limitation, we hold that the same is barred by limitation and is required to be set-aside. As a consequence, penalty imposed upon the appellant is also required to be set-aside. We order accordingly and allow the appeal with consequential relief to the appellants. (Dictated and pronounced in the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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