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TMI Blog2023 (7) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... ] the facts pertained to raising a duty of business of cutting larger steal plates. So also, the trader had challenged the imposition of penalty, and amongst other grounds the issue of limitation was taken up. It was held that demand beyond normal period of 6 months was not sustainable. In the present proceedings, the Show Cause Notice was issued on 12th February, 1996, for a period from February, 1991 to July, 1995, which is admittedly issued beyond a period of 6 months. At the relevant time the unamended Section 11A(1) mentioned a period of 6 months within which a notice could be served. Therefore, the Show Cause Notice can be sustained only if the department is able to show that there is suppression on the part of the Appellant. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt s representative were recorded by taking recourse to the summons proceedings. Thereafter on 12th February, 1996 a Show Cause Notice was issued by the Commissioner proposing to recover duty of Rs. 31,78,879/- along with interest and penalty on the entire clearances of the Appellant which also included traded goods. 4. By Order-in-Original dated 28th September, 2001, the Commissioner confirmed the demand covered under the said show cause notice and also imposed penalty, based on his findings that profile cut plates were classifiable under Chapter 73 and amounted to manufacture and demand was not barred by limitation. 5. Being aggrieved by the order dated 28th September 2001, the Appellant filed Appeal before the Appellate Tribunal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use Notice was issued beyond the period of limitation. 9. Ms. Mansi Patil, the learned counsel for the Appellant submitted that the entire trade was taking consistent stand that mere gas cutting of M.S. Plates is not a manufacturing activity, for which the traders had made correspondence with various commissionerates, and some commissionerates had even clarified that it does not amount to manufacture. Even in the public media viz regional daily newspaper Vyapaar certain legal opinions were published which stated that profile cutting activity was not manufacturing activity. Therefore, the Appellant believed that the process of mere gas cutting of plates, carried out by them, does not amount to manufacture and hence, did not pay any exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely different facts and the ratio laid down therein does not apply to the present case. So also the order in Pioneer Profile (Supra) passed by the Commissioner, there was confusion at the higher level of the department. 13. Ms. Fenandes, further argued that the Appellant had suppressed facts. The goods were mis-declared as against the actual goods. It is contended that the Appellant had never approached the department for any type of verification in the matter, however, there was deliberate suppression by the Appellant. She has further contended that in the present case, there was in fact no confusion nor any doubt in the Appellant s own mind that its activity amounts to manufacture. She further contended that the Appellant has forged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, [as if, [***]] for the words six months , the words five years were substituted [emphasis supplied] 17. The judgment of the Supreme Court referred by the learned counsel for the Appellant in Sanjay Industrial Corporation (supra) the facts pertained to raising a duty of business of cutting larger steal plates. So also, the trader had challenged the imposition of penalty, and amongst other grounds the issue of limitation was taken up. It was held that demand beyond normal period of 6 months was not sustainable. Paragraph No. 7 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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