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TMI Blog2018 (5) TMI 1873X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the same facts could not be taken for invoking the charges of suppression of facts etc., for invoking the extended time proviso, this matter was already in the knowledge of the department since year 2012 itself. Thereafter another show cause notice for normal period have been issued by them on 18 December, 2015 and thereafter issuing the impugned show cause notice again on 29.11.2016 by invoking the extended time proviso, is not legally sustainable. The demand in the show cause notice is barred by limitation and therefore, same is legally not sustainable - the appeal is allowed on the point that extended time proviso under Section 28 of Customs Act, 1962 is not invokable in this case. - Customs Appeal No. 51889 / 2018, Customs Appeal No. 52240 / 2018, Customs Appeal No. 52241 / 2018 - FINAL ORDER NO. 50626 /2019 - Dated:- 3-5-2019 - HON BLE MR. C L MAHAR, MEMBER (TECHNICAL) And HON BLE MS. RACHNA GUPTA, MEMBER(JUDICIAL) Shri V V Gautam, Advocate for the Appellant Shri Sunil Kumar, Authorized Representative for the Respondent ORDER C L MAHAR : The brief facts of the matter are that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant have primarily assailed the finding of the Order-in-Original on following counts:- (i) That the customs tariff heading 3809 specifically covers the sizing agents used in paper processing industry and the import item, namely AKD wax are the derivative of fatty acids which are used as sizing agents for surface treatment of paper. It has been contended by the learned advocate that in accordance with the Rule 1, Rule 4 and Rule 6 of the General Rules of Interpretation for first schedule of the imported tariff, the most appropriate sub-heading for classifying the AKD is CTH 38099200 as it includes functioning of agents and a kind used in paper industry and not elsewhere specified or included. Since the AKD is exclusively used as a sizing agent for manufacture of paper in the paper industry and therefore, the correct classification for the imported product is 3809. The learned advocate has produced certain literature of US Patent Technical Department in support of his claim. It has also been mentioned that the appellant have got the imported product namely, AKD chemically tested and analysed from a recognised chemical laboratory namely, Shriram Institute for Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther been added that the Revenue cannot rely on reassessment made in the past as a ground to allege wilful mis-statement or mis-representation rather it goes in favour of the appellant that the Department was fully aware of the nature of the product imported by the appellant. It has further been argued that a Show cause notice for the same imports demanding differential Customs duty dated 18.12.2015 had already been issued to the appellant covering the Bill of Entries from 18.12.2014 to 16.06.2015. It has therefore, been submitted by the learned advocate that since the Department was aware of the matter since 2012 and they have already issued a Show cause notice in the month of November, 2015, the elements of invoking the extended time proviso under Section 28 of the Customs Act, 1962 are not present in the instant case. It has, therefore, demanded that the show cause notice is barred by period of limitation and thus legally not sustainable. Learned Advocate has also contended that though the Bills of Entry are self assessed, there have been order of examination before the clearance of import consignments and had there been any doubt in the mind of Department, they could have drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven circumstances as unwarranted and legally not sustainable as the appellants have not resorted to any mis-declaration, fraud, suppression etc. with an intent to evade payment of duty. 5.. We have also heard the learned DR who has supported the findings given in the Order-in-Original. 6. Having heard both the sides and after perusal of the record of the appeal in detail, we feel that before deciding the matter of classification of the product on merits it will be more appropriate to examine whether in the given facts and circumstances of this case, the extended time proviso under section 28(4) of the Customs, Act, 1962 has rightly been invoked or not. We note that the demand in the Order-in-Original for the differential amount of Customs duty has been confirmed for the period covering May, 2011 to December, 2015, the classification of the import product namely, the AKD wax was first disputed by the Department in 2012 when the Bill of entry No. 73353695 dated 10.07.2012 was re-assessed by the concerned officer under CTH 34049090 and the differential duty was recovered from the appellant. The appellant have paid the differential amount of duty and clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Foundation Joint Venture vs CCE, Chandigarh I reported as [2007 (216) ELT 177 (SC)] has held that when the facts are known to both the parties, the omission by one party that might have been done, will not amount to suppression. 9. Further the Hon ble Supreme Court in the case of Nizam Sugar Factory vs. Collector of Central Excise, AP [2006 (197) ELT 465 (SC)] has held that as all the relevant facts are in knowledge of Department, when the first show cause notice was issued, the issue of subsequent show cause notice on the same facts could not be taken for invoking the charges of suppression of facts etc., for invoking the extended time proviso, we find this matter was already in the knowledge of the department since year 2012 itself. Thereafter another show cause notice for normal period have been issued by them on 18 December, 2015 and thereafter issuing the impugned show cause notice again on 29.11.2016 by invoking the extended time proviso in our opinion is not legally sustainable. In view of the above, we hold that the demand in the show cause notice is barred by limitation and therefore, same is legally not sustainable. Hence, the order-in-original confirming ..... 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