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TMI Blog2011 (1) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... .9,95,538/-, under Rule 9(2) of CER, 1944 r/w Section 11A of CEA, 1944, and imposing penalty of Rs.2,50,000/-, under Rule 9(2), Rule 52A and Rule 173Q of CER, 1944, on the clearances of Silpack Flexible LDPE Films, during the period from 01.01.1978 to 24.11.1978. The Commissioner confirmed the demand, by denying exemption under Notn.No.68/71-CE dated 29.05.1971 on the ground that the said LDPE Films, based on Test Report dated 18.10.1982 issued by National Test House, Alipore, Kolkata, were 'Rigid Plastic'. Extended period has also been invoked on the ground that licence was not obtained and GPIs were also not issued. 2. The brief facts are that the Appellants had been availing exemption under Notn.No.68/71-CE dated 29.05.1971, under clause (i) claiming their LDPE Films to be 'flexible' and such exemption was being allowed. 2.1 With effect from 25.11.1978, an Explanation to Notification No. 68/71-CE was added, providing meaning to 'Flexible' 'Rigid'. With insertion of this Explanation, exemption was restricted inter-alia to Flexible Films, in accordance with the meaning assigned thereto. 2.2 By letter dated 5.2.1979, Range Supdt. asked the Appellants to inform him as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was allowed exemption under clause (i) of Notn.68/71-CE, ibid for the period prior to the period in dispute. The Explanation added w.e.f. 25.11.1978 to the said Notification ascribing meaning to 'Flexible' does not affect their case, as their product is Flexible Film. 3.2 That in the absence of any meaning assigned to 'Flexible', prior to 25.11.1978, dictionary meaning has to be considered. The Oxford Dictionary (Compact Edition) 1971 defines 'rigid' to mean stiff, unyielding, not pliant or flexible, firm, hard. It defines 'flexible' to mean capable of being bent, admitting of change in figure without breaking and yielding to pressure, pliable, pliant. 3.3 That Notn.68/71-CE, prior to its amendment on 25.11.1978, was considered by the Hon'ble Bombay High Court, in the case of Mechanical Packing Industries Pvt. Limited v/s. G.L. Nangia and Others, reported in 1981 ELT 144 (Bom), wherein it was held that in the absence of meaning assigned to the words `Rigid' and `Flexible', the Authorities were obliged to ascertain the ordinary or dictionary meaning. 3.4 That in an identical case, interpreting the very same Notn.68/71-CE, for the period 1.4.1978 to 25.11.1978, Hon'ble Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith meaning of words as used in Tariff Item 15A of erstwhile Central Excise Tariff. 3.7 That Ld. Counsel claims that in the said judgment, Hon'ble Supreme Court did not decide whether the Explanation would have retrospective effect or so, as it was only held that Govt. is empowered to assign meaning to the word `Rigid' and 'Flexible' and such ascribing meaning is legal. 3.8 That the Notice to Show Cause dated 1.1.83 did not rely on the test report dated 18.10.1982 and, hence, the same cannot be taken as a basis, in the impugned Order-in-Original, for deciding against the Appellants. Likewise, recording of the statement of the Appellants, Managing Director, after issue of Show Cause Notice and filing defence reply, and issuing addendum to SCN for invoking extended period is not permissible. 3.9 That the Appellants, by their letter dated 1.2.1983 and 18.7.1983, requested for retest, which is their statutory right under Rule 56(4) of CER, 1944, which was not acceded to by the Ld. Commissioner. 3.10 That Explanation inserted from 25.11.1978 would have prospective effect, for which support was drawn by the Ld. Counsel from sub-section (2A) to Section 5A of CEA, inserted from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Hon'ble Supreme Court in the case of Bajaj Auto Ltd. reported in 2010 (260) ELT 17 (SC), would support the Revenue in view of positive suppression by the Appellants. 6. Ld.Counsel for the Appellants, in his rejoinder, claimed that once 11C Notification is issued for the subsequent period, it is a belief and understanding of the Government that such exemption was available for the preceding period also, which gets substantiated from the provisions of Section 11C. Further, any curtailment of the rights, by insertion of an Explanation, would have prospective effect, as held by the Hon'ble Supreme Court in the case of State of Punjab Ors Vs. Bhajan Kaur Ors, reported in (2008) 12 SCC 112, and other judgments. 7. Heard both sides. 8. After hearing at length both sides, we observe that the ld. advocate has argued on merits and as well as on limitation on saying that the extended period of limitation is no invocable in the facts and circumstances of the case. We further observe that in this case investigation was started against the appellants by the Range Superintendent on 5.2.79 after amending Notification dated 15.11.78 to Notification no. 68/71-CE dated 29.5.71 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the interpretation of any Notification, is generally to be settled by the Tribunal or higher Court only after issuance of Notification. At the time of issue the Notification, both the parties are at liberty to interpret the Notification as per their will. But when the same has attained finality after deciding by any forum such as Appellate Tribunal/High Court/Supreme Court or acceptance by both sides mutually, thereafter, if any act of clearance of goods by the assessee taking wrong benefit of the Notification, shall amount to suppression. The said issue has been dealt by this Tribunal, in the case of East Coast Packaging Ltd. (supra) wherein in the similar said facts, the Tribunal has held as under:- 'On the position of limitation, ld. advocate has drawn attention to the fact that in the instant case a Notification under Section 11C has been issued admitting thereby a general practice of assessment from 25.11.1978 regarding the treatment to these sheets being given as flexible sheets. In these facts and circumstances and admission of this general practice in the country by the Government itself no allegation of wilful suppression or mis-statement of facts can be laid a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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