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TMI Blog2005 (3) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... ufactured out of flats not exceeding 5 mm in thickness are exempt from duty under the Notification; that the demand pertains to the period from 26-3-1990 to 30-3-1992; that when the matter was first heard by the Appellate Tribunal the same was remanded vide Final Order No. 1937/2000-B dated 23-11-2000 [2001 (127) E.L.T. 210 (Tri.)] to examine the time bar issue afresh and also to work out the correct duty payable by the Appellants. The learned Advocate, further, submitted that during the relevant period a dispute was going on between the department and the suppliers of raw material regarding correct classification of their products; that the department classified the product of the supplier as flats and collected duty at the rate applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 991 to the department and as such their bona fide is evident. He relied upon the decision in the case of CCE, Hyderabad v. Pharmasia P. Ltd. - 1997 (92) E.L.T. 464 (S.C.) wherein it has been held by the Supreme Court that exchange of correspondence between the assessee and Excise Department does not constitute mis-representation. He also relied upon the decision in the case of Garg Ispat Udyog Ltd. v. CCE, Jaipur - 2001 (136) E.L.T. 918 (T) wherein it has been held that as the correct classification of goods was in dispute no intention on the part of the assessee to evade payment of duty by resorting to suppression/mis-statement of facts can be attributed. 2.2 The learned Advocate, further, submitted that in the Remand Order the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding date of production, total production, total purchase of inputs alongwith its thickness were furnished by the Appellants; that therefore, at the most the department came to know about the matter only from the date of receipt of letter dated 29-4-1991. 4. We have considered the submissions of both the side. Notification No. 202/88-C.E., dated 20-5-1988 exempted tubes pipes of steel other than seamless tube and pipe of steel provided these were manufactured out of skelp, hoops, sheets of thickness not exceeding 5 mm, strips of thickness not exceeding 5 mm and flats of thickness not exceeding 5 mm. It is not in dispute that the gate-passes under which the Appellants received inputs, were described by the suppliers as "Rectangular Bars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions of the learned Advocate that they had themselves intimated to the department about their manufacturing the goods and availing of exemption. This does not wipe out the suppression of facts committed by them during the period prior to 22-1-1991. If the contention of the Appellants is accepted, every person who is evading payment of duty can after some time inform the department about their manufacturing activity and will seek non-application of extended period of limitation. 5. We find force in the submissions of the learned Advocate that Modvat credit of the duty actually paid has already been allowed to them by the Tribunal. As the Revenue had not filed any appeal against the said Final Order, it is not open to the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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