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TMI Blog2004 (1) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(iii) of the show cause notice that duty is being demanded by invoking the extended period of limitation as they had manufactured the impugned goods without obtaining Central Excise licence/registration and cleared the same without payment of duty and without observing other procedure which amounted to suppression of facts. But the question remains as to whether there was suppression of facts on the part of the appellants with an intent to evade payment of duty. It has been held by the Supreme Court in Cosmic Dye Chemical v. C.C.E.,[ 1994 (9) TMI 86 - SUPREME COURT] that it is not correct to say that there can be suppression or misstatement of fact which is not wilful and yet constitutes a permissible ground for the purpose of the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nture have filed this appeal against Order-in-Original No. 18/2003, dated 1-4-2003 passed by the Commissioner, Central Excise on remand by the Tribunal, vide Final Order No. 1049/99-D, dated 16-12-1999 [2001 (134) E.L.T. 258 (Tri.)]. 2. Sh. L.P. Dhir, learned Advocate, mentioned that the appellants, a construction firm, were entrusted by the Punjab Government with the construction of roads and bridges for four laning of National High Way No. 1 from Khanna to Jalandhar carried out during the period March, 1989 to February, 1994; that a show cause notice dated 31-3-1994 was issued to them for (i) demanding Central Excise duty on the Websols and crushed stones manufactured by them, (ii) confiscating websols and crushed stones, and (iii) impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words "intent to evade payment of duty" were of utmost relevance and that intent to evade duty was essential before proviso could be invoked; that the appellants bona fidely believed that the activity of making stone aggregate for home consumption was not dutiable being related to construction of immovable properties; that it has been held by the Supreme Court in Jaiprakash Industries Ltd. v. C.C.E., Chandigarh, 2002 (146) E.L.T. 481 (S.C.) that "mere failure or negligence on the part of the manufacturer in not taking out a licence and in not paying duty does not attract the extended period of limitation. This court has held that there must be evidence to show that the manufacturer knew that the goods were liable to duty and that he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is not taking up the issue of the excisability of the goods in view of the specific issue remanded by the Tribunal; that it has been held by the Tribunal in the case of R.K. Traders v. C.C., Mumbai, 2002 (145) E.L.T. 372 (T) that "once the order of the Commissioner is set aside and remanded for de novo consideration by the Tribunal, the previous order no longer survives. The Commissioner ought to have adjudicated the matter on all aspects including penalty. Therefore, his finding that the Tribunal has not given any direction on the issue of penalty and hence he retains the amount which had been imposed as penalty at the first instance is a wrong order and is totally unsustainable in law." The learned Advocate, thus, contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the Remand Order and it cannot go beyond those specific directions; that accordingly ratio of the decision in R.K. Traders is not applicable to the facts of the present matter. He, however, contended that the process of crushing of stones into small stones amounts to manufacture as has been held by the Appellate Tribunal in the case of Hindustan Construction Co. Ltd. v. C.C.E., Chandigarh, 1997 (89) E.L.T. 123 (T). Reliance has also been placed on the decision in Larsen & Toubro Ltd. v. C.C.E., Raipur, 2000 (115) E.L.T. 172 (T) wherein the Tribunal has held that crushing of boulders into stones amounts to manufacture as it brings into existence a new excisable commodity and that crushed gitties are classifiable under sub-heading 250 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with an intent to evade payment of duty. It has been held by the Supreme Court in Cosmic Dye Chemical v. C.C.E., Bombay, 1995 (75) E.L.T. 721 (S.C.) that it is "not correct to say that there can be suppression or misstatement of fact which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A. Misstatement or suppression of fact must be wilful." The Supreme Court considered the aspect of invocability of proviso to Section 11A in similar facts in the case of Jaiprakash Industries Ltd., 2002 (146) E.L.T. 481 (S.C.) wherein also the appellants were engaged in construction activities and as part of their business they crushed boulders into "bajri" which is then used in the construction work. They ..... X X X X Extracts X X X X X X X X Extracts X X X X
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