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TMI Blog2018 (12) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... led and no statutory accounts were maintained for the manufacture and clearance of goods. The date of inspection of 11.11.1993 will not have any bearing for being considered as the relevant date for issue of SCN within the period of limitation. The demand is not time-barred and the charge of suppression has been rightly held to have been proved by the authorities below - appeal dismissed. - E/241/2001 - FINAL ORDER No. 43094 / 2018 - Dated:- 14-12-2018 - Shri Madhu Mohan Damodhar, Member (Technical) and Shri P. Dinesha, Member (Judicial) Shri R. Janardhanan Pillai, Consultant For the Appellant Shri A. Cletus, ADC (AR) For the Respondent ORDER The facts of the matter are that M/s.Velvette International Pharma Products Ltd., the appellants herein were inter alia manufacturers of NIVARAN 90 Herbal Cough Syrup . A show cause notice dt. 17.5.1996 was issued to the appellants inter alia proposing demand of Central Excise duty amounting to ₹ 78,14,418/- as liability for the period 01.05.1991 to 28.2.1994, invoking extending period of limitation on the grounds that declarations filed by the appellants over the years from 1990 onwards had misdeclared the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Taking note of the fact that the main issue regarding classification of the product NIVARAN 90 Herbal Cough Syrup is pending before the Hon ble Supreme Court, vide Final Order No.41232/2017 dt.19.07.2017 the Tribunal closed the appeal for the purpose of statistics with liberty given to both sides to file application to reopen the matter as and when the case is disposed of by the Hon ble Supreme Court or in case of any change of circumstances. On an appeal preferred by the department before the Hon ble High Court of Madras, predominantly on the ground as to whether CESTAT was correct in closing the case for the purpose of statistics, the Hon ble High Court vide their order dt. 20.06.2018 ordered as under : 5. Going through the material on record, both Mrs. Aparna Nandakumar, learned Senior Standing Counsel for the appellant in C.M.A.No.1046 of 2018 and Mr. V.Sundareswaran, learned counsel for the appellant in C.M.A.No.1093 of 2018, and the learned counsel for the respondents, stated supra, consented that the orders impugned in both the appeals, be set aside, and matters be remanded to CESTAT, madras, either to dispose of the appeals filed before the Tribunal, on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial Excise duty which duty was not included inadvertently in the show cause notice originally issued on 17.5.1996. It is thus clear that the supplementary show cause notice is a corrigendum to the show cause notice dated 17.5.1991. When a corrigendum is issued to a show cause notice, substantially changing the show cause notice originally issued, the date of show cause notice should be taken as the date of issue of the corrigendum. There is no legal provision to issue a corrigendum to the show cause notice. We press into service the following judgements in support of our plea : (a) 2017 (348) ELT 214 (Bom.) Arihan Telecommunications vs. UOI. Held that limitation to be counted from date of corrigendum. (b) 3013 (295) ELT 36 (Jhar.) Fast Track Tour and Travels. Held that substantially changing the liability of the assesse, limitation should be counted from the date of service of corrigendum. (c) 2005 (184) ELT 201 (Tri.Del.) Somani Iron Steel Ltd. There is no legal provision to issue a corrigendum. (d) 2006 (196) ELT 237 (CESTAT) Mukesh Dye Works Held that a corrigendum changing the basis of the show cause notice is fresh show cause notice. (e) 1999 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of extended period on the grounds of suppression. 5. Heard both sides and have gone through the facts. 6.1 This appeal has been taken up by the Tribunal in compliance with the Order dt. 20.06.2018 of the Hon ble High Court of Madras in C.M.A.No.1093 and 1046 of 2018. In effect, this Tribunal will also have to consider only limited issue as per the remand order dt. 19.10.2011 of the High Court in C.M.A.No.2759 of 2010. 6.2 The C.M.A.No.2759/2010 had been admitted by the Hon ble High Court on the following questions of law : (1) Whether in the facts and circumstances of the case, the date of inspection has any bearing in deciding the period of limitation to issue show cause notice in a case covered by the first proviso to Section 11-A of the Central Excise Act? (2) Whether in the facts and circumstances of the case, the Tribunal committed substantial error of law in not considering the preliminary objection of jurisdiction of the Commissioner of Central Excise in deciding a classification matter when the proper officer is the Assistant Commissioner of Central Excise as per Rule 173-B of the erstwhile Central Excise Rules ? (3) Whether in the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing office of the appellant was searched subsequently on 23.11.93. Further, another office of the appellant at Dr. Ambedkar Road, Kodambakkam, Chennai was visited on 6.5.1996 and certain documents were recovered from that place also. 7.2 From the list of documents relied upon in the SCN, it is also evident that there was to and fro correspondence between the department and the appellant subsequent to the visit of the officers. There is also mention of letters dt. 11.2.1994 addressed to the Director, Drug Control Department, reply letter dt. 8..3.1994 of the Director, Drug Control. So also, there is a reference to a letter dt.11.5.94 to the Director of Indian Medicine Homeopathy Department and another letter dt. 7.12.94 to the same authority, reply of the Director of Indian Medicine was issued on 1.12.95. There is also a reference of a certificate dt. 15.5.96 of Shri A.V.M. Unni, Vaidyan of Arya Vaidya Pharmacy, Madras. 7.3 Quite evidently, the said visit of the officers on11.11.93 only served to facilitate collection of a number of documents, registers etc. under a Mahazar drawn on the same date of the visit. So also, a larger number of documents were also resumed under mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the appellants dt.20.10.1990 informing that their Herbal Cough Syrup Nivaran 90 is being classified as Ayurvedic Medicine, and also giving the list of ingredients for its manufacture. It is very obvious that the said letter has been acknowledged by the concerned Superintendent of the department in good faith, however that by itself cannot coat the said declaration with the stamp of finality or infallibility. In fact, the very averments made in the said declaration have been found incorrect and misstated which by itself is a recognized raison d etre for invoking extended period of limitation. This is what has been done in the impugned SCN. The attempt by Ld. Consultant to take us on a journey not contemplated by the order of the Hon ble High Court not only fails but has been found incorrect. 7.6 The SCN has also alleged that appellants had mis-declared the process of manufacture and formula of the product, suppressed from the department the use of non-ayurvedic ingredients which was other than declared, with intention to evade payment of duty and hence have invoked extending time limit of five years as provided in proviso to sub-section (1) of Section 11A of the then Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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