PAMWI TISSUES LIMITED Vs. CCE, CHANDIGARH

JUDGEMENT

(1.) AFTER hearing the learned Counsel representing the appellants and the ld. Departmental Representative at length. We felt that the appeal itself may be taken up for consideration after dispensing with the requirement for pre -deposit of duty and penalty.

(2.) THE appeal is directed against the duty demand, claim for interest and imposition of penalty made on the appellant under adjudication order 51/CE/99 dated 30.9.99 of the Commissioner of Central Excise, Chandigarh. The issue involved in the proceedings before the Commissioner was whether the appellant had rightly been given the benefit Notification No.138/CE dated 1.3.86 in respect of 4 varieties of paper manufactured and cleared by them. The varieties of paper were glazed packaging tissue (GLPT), Laminating Base Tissue (LBT), Release Base Tissue (RBT), Coloured Release Base Tissue (CRBT). The dispute relates to the period 1.3.86 to 20.3.90. During the period the classification of the goods have been approved under Chapter Heading 4805.90 and the appellant had been allowed the benefit of the aforesaid exemption Notification. The assessments so made were sought to be changed by issue of a show cause notice dated 1.4.91.

(3.) THE appellants objected to the proposed revision of the assessment and demand of duty contending that the show cause notice is bad in law and is required to be struck down at the threshold as the same has been issued beyond the time limit applicable. The show cause notice had invoked the extended period of 5 years as available under proviso to Section 11A (1) of Central Excise Act. The appellants contention all thorough has been that the circumstances permitting the application of the extended period did not exist in the appellants' case. The circumstance mentioned in the proviso covered to fraud, wilful suppression of facts, misdeclaration etc. The appellants' contention is that the allegation made in the show cause notice and confirmed in the impugned order that the appellant had wilfully suppressed relevant facts and had obtained exemption which they were not entitled to is not supported by facts. During the hearing before us today the learned Counsel for the appellant emphasised that the clearance of the goods have taken place under approved Classification Lists. The assessments had also been finalised under RT 12s which had been filed from month to month. The learned Counsel explained that the appellant had correctly stated the facts about the goods in the relevant Central Excise documents. He took us in particular to the classification list effective from 1.4.86 where the goods in question were enumerated under common serial No.V 'other uncoated paper and paper board in rolls and sheets namely'. While naming these goods; the appellant had specifically stated with regard to GLPT that the paper in question was Glazed packing Tissue. With regard to LBT, it was amplified 'as lamination tissue'. The duty paying document, namely, gate passes, shoed that the same description as in the Classification List. He, therefore, submitted that a charge of suppression of facts cannot lie in the face of these documents. The learned Counsel submitted that this is particularly so in view of the previous assessment actions taken by the department. During 1984 the same goods were eligible to exemption under Notification No.25/84 which was predecessor to Notification No.138/86. That Notification excluded from the benefit of the exemption, interalia, "glassine paper" under a Proviso to the notification. The same goods were excluded from the benefit of Notification No. 138/86 by Proviso (iii) by stating that the exemption contained in the Notification shall not apply to paper and paper boards falling under sub -heading 4806 e.e. glassine and other glaxed paper. The learned Counsel submitted that samples of the goods had been drawn in 1984 with the specific purpose of testing them to ascertain whether they were eligible for Notification No. 25/84. The Classification Lists were approved allowing the benefit to the appellant in the light of the test report from the Central Revenue Control Laboratory. The learned Counsel submitted that in these circumstances, it is clear that all material facts were known to the Department and they considered them while approving the exemption.