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TMI Blog2024 (4) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... gularly shaped rough marbles into the marble slabs of specific length, breadth and width. The area of slabs with specific dimensions can readily be calculated into Square Feet/ Sqr. Meters. However for the rough block/irregular shaped marble it is only the volume in cubic meters which can be ascertained to some extent of precision. It is appellant s case that the production quantity of marble slabs has been calculated by adopting the aforesaid option given - it cannot be denied by the reasonable prudence that once a particular volume of marble block will be converted into slabs of different thicknesses, the area in Sq. Ft./Sq. Mtr. For the slab having more thickness will be less. From the given standards it can be judicially noticed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient to be called as suppression of facts to invoke the extended period. Department has to prove that the act was deliberate to not to pay or to short pay the duty - there is no evidence for the same - thus, even extended period has wrongly been invoked. Resultantly, the Show Cause Notice itself is barred by time. The demand under challenge does not sustain on its merits. It also stands hit by the bar of limitation. Hence the demand is held to have wrongly been confirmed. The order under challenge is therefore set aside - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 dated 08.06.2020. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Shri Bipin Garg, ld. Counsel for the appellant and Shri Mahesh Bhardwaj, Authorised Representative for the Department. 3. Ld. Counsel for the appellant mentions that the appellant being the manufacturer of marble slabs from rough marble opted to discharge his Central Excise Duty liability as per the option given in Chapter Note 5 of Chapter 25 of Section V of First Schedule to Central Excise Tariff Act 1985 with respect to the rough block of marbles. The entire production of marble block being converted into slabs based upon the aforementioned formula is being duly recorded. The record for the impugned period was also available and was duly provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained to some extent of precision. I also observe that there is no dispute about Chapter Note V of Chapter 25 of Customs Tariff Act, 1985. The said note reads as follows:- "In relation to marble slabs of heading 2515, if a manufacturer clears irregularly shaped marbles he shall have the option to discharge the duty on the slabs by treating one cubic meter of marble blocks as equivalent to 30 square meters of marble slabs, the volume of the blocks being determined with reference to the maximum length, width and height of the block." 6. It is appellant's case that the production quantity of marble slabs has been calculated by adopting the aforesaid option given. There is also no denial to the fact that the slabs are manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended period of limitation, I observe that the only ground taken for the same is that the right quantity was not mentioned in the ER-1 Returns and had no audit would be conducted the short-payment by the appellant would not have come to the notice of the department. However, I observe it to be a matter of fact that all details were available in the records of appellant whatever was mentioned by the appellant in the ER-1 Returns was as per their records maintained by applying the formula given in the Tariff Act. I am of the opinion that the above all mere oral allegations. There is no evidence to prove that the intent of the appellant was to evade duty. Admittedly the appellant as per selfassessment has discharged his duty liability. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be construed strictly. Resultantly mere omission is not sufficient to be called as suppression of facts to invoke the extended period. Department has to prove that the act was deliberate to not to pay or to short pay the duty 10. As discussed above there is no evidence for the same. Hence, I hold that even extended period has wrongly been invoked. Resultantly, the Show Cause Notice itself is barred by time. 11. In the light of the discussion above the demand under challenge does not sustain on its merits. It also stands hit by the bar of limitation. Hence the demand is held to have wrongly been confirmed. The order under challenge is therefore set aside. Consequent thereto the appeal stands allowed. [Pronounced in the open Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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