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TMI Blog2015 (10) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... lied to the colony for which they had even installed a separate meter. The show cause notice does not bring out as to what they wilfully misstated/suppressed with the intention to evade. - while issuing second and third show cause notices involving same/similar facts, suppression/wilful misstatement could not be alleged. Further the appellants were not unjustified in thinking that as the total duty paid diesel used by them would have generated more electricity than the quantity supplied to their residential colony, they were complying with condition of Notification No. 1/95-C.E./22/2003-C.E. In the case of Gopal Zarda Udhyog v. Commissioner of CCE, Delhi - [2005 (9) TMI 83 - SUPREME COURT OF INDIA] - the Supreme Court observed that mere fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 13-3-2006 which upheld the Order-in-Original No. 111/2005, dated 2-12-2005 passed in respect of show cause notice dated 2-12-2004. 2. Briefly stated, the facts are as under : The appellants are a 100% export oriented unit and generate electricity for captive consumption. Some of the electricity generated is also supplied to their residential colony. Vide letter dated 28-12-1999 they intimated Revenue that from 1-1-2000 they would be supplying electricity to their residential colony also and would pay duty on the high speed diesel used in generating electricity supplied to the colony; they installed separate meter for that. They procured diesel duty free as well as on payment of duty and claimed that the electricity generated by usi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1-2000. They had been procuring (importing) duty paid diesel also and their use of such diesel, it is not disputed by Revenue, would have produced more electricity than the quantity of electricity supplied to the colony for which they had even installed a separate meter. The show cause notice does not bring out as to what they wilfully misstated/suppressed with the intention to evade. It is seen that two more show cause notices on the same issue were issued to the appellants on 23-7-2004 and 1-9-2004. The Hon ble Supreme Court in the case Nizam Sugar Factory v. CCE, AP - 2006 (74) RLT 564 (SC) = 2006 (197) E.L.T. 465 (S.C.) = 2008 (9) S.T.R. 314 (S.C.) has held that while issuing second and third show cause notices involving same/similar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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