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TMI Blog2003 (3) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... d separately Emulsion, Matrix, Fuel Oil and Ammonium Nitrate. They took contracts for supply of prepared explosives for blasting in the mines. Such prepared explosives fall under sub-heading 3602.00. The van was taken to the mines, inside the mines the forth compartment of the mobile van was used for mixing the three ingredients in the required proportions which were then taken for blasting. Show cause notice was issued on 20-2-2001 alleging that the activity of mixing the ingredients together in the van at the mine site amounted to manufacture. It was alleged that the appellants had not taken out a licence, had not maintained accounts, and had cleared the excisable goods without payment of duty. The short levy during the period January, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion but having the essential character of the finished goods. In doing so the Commissioner misdirected himself completely. 4.In the cited case of [Collector of Central Excise v. Kalinga Paints Chemicals Industries - 1989 (44) E.L.T. 548] aluminium medium and aluminium paste were put together in a common packet. The Tribunal held that in such condition the commodity which was manufactured only on admixure thereof could not be called to come into existence while the two ingredients were packed separately. In the present case as long as the three ingredients were carried separately they retained their separate identities of duty paid goods. Only when they would be mixed together in certain proportions, would they merge and emerge as a new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stry regarding this exemption. In a letter F. No. 108/3/93-CX. 3, dt. 7-7-1994 the Deputy Secretary, C.B.E. C. informed the appellants that the explosive manufactured by them in the mines would enjoy exemption under the said notifications. In a letter written to the Jurisdictional Commissioner vide the same file number and the same date the Board veiy clearly stated that "Mobile Van which carried the ingredients to the mines area is covered by exemption Notification No. 182/87". This was clearly in pursuance of an earlier Circular No. 22/90-CX. 3, dated 26-4-1990 which gave a wider interpretation to the terms "Workshop" for the interpretation of Notificaiton No. 182/87. 7.During the material time serial No. 4 Notification No. 63/95-C.E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued after the permissible period of six months. It is clear from the notice that there is no averment therein that the respondent has contravened the relevant provisions with intent to evade the payment of excise duty, nor is this a necessary inference upon the facts alleged. The extended period is, therefore, unavailable. The notice being out of time, the order under appeal must be upheld." 10.This observation applies totally in this case. Even if there had been any such allegation in the show cause notice it could not have been sustained, in the absence of proof of suppression. In the judgment in the case of Pushpam Pharma [1995 (78) E.L.T. 401] the Supreme Court held that where the facts were known to both sides, suppression could n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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