Customs, Excise and Gold Tribunal - Delhi
Tech - Invest (India) Pvt. Ltd. vs Collector Of Central Excise on 24 November, 1989
Equivalent citations: 1990ECR109(TRI.-DELHI), 1990(47)ELT665(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. In this appeal, the appellants have challenged the validity and correctness of the order of the Collector of Central Excise, Meerut confirming the demand of duty of Rs. 2,47,987.23 P under Rule 10 of the Central Excise Rules, 1944 on the ground that the appellants had removed dutiable goods without payment of duty, without licence and without observing Central Excise formalities. The Collector has also imposed personal penalty of Rs. 5,000/- for contravention under Rule 173Q of the Central Excise Rules. The Revenue has also filed cross appeal.
2. The appellants are engaged in the manufacture of goods known as glass Textolite. Glass Textolite is a special laminate manufactured with two basic ingredients -Glass cloth and resin. The resin-used as per requirement is either epoxy resin or phenolic resin besides other inputs. The glass cloth is impregnated in a special plant with diluted resins. It is cut into correct size and the stacks are pressed in a high pressure and high temperature multi-day-light press to form laminates. These laminates are used by BHEL for various insulating purposes.
3. The facts involved in this case as enumerated in the show cause notice dated 9-3-1986 are that the appellants were engaged in the production and clearance of Phenolic resin falling under Tariff Item 15A(1) from 28-2-1979 without obtaining the Central Excise licence and without paying duty leviable thereon. The factory had installed one S.S. Resin Modulating plant which started production on 28-2-1979 and which was being used for the manufacture of phenolic resin. From the raw material accounts maintained by the factory, it was found that they had used 28,991.40 kg of Phenol and 42,543 kgs. of Formaldehyde for the manufacture of phenolic resin from 28-2-1979 to 5-8-1983. It was further stated in the notice that for manufacture of 100 kgs of phenolic resin, 50 kgs of phenol is required, the total quantity of phenolic resin manufactured and cleared by the factory worked out to 57,982.80 kgs and further stated that taking into consideration the rates of phenolic resins prevalent at that time i.e. Rs. 25 per kg., valued at Rs. 14,49,570/- and the duty demand on this was Rs. 2,72,011.50 (Basic) and Rs. 13,600.58 P. (Special).
4. The appellants submitted their written explanations dated 16-8-1984 and also through their consultant on 27-9-1984 and 1-10-1984. The main defence of the appellants had been that the claim had been timebarred. They emphatically denied that they had not obtained licence or filed classification list or had made any suppression of any of their activity which had always been under scrutiny and subject to inspection of the Department time and again. They submitted that they had informed the Department of their process of manufacture and had also enquired about their liability to duty from the Department, since 1979. They had explained in their Classification list of 1980 a detailed process of manufacture. In para 1(a)(ii), they had mentioned about treatment with phenolic resin formulations. They further contended that there was no allegation of suppression in the show cause notice. They further contended that they were making phenolic resin formulation tailormade for their use only. It had a short shelf life and an intermediatory input for their final product. These are not goods as these could not ordinarily be bought and sold in the market. Their final product was based on Epoxy and Phenolic resins which was captively produced and consumed which fact was fully within the knowledge of the Department. They further denied that the product was Phenol Formaldehyde resin falling under Tariff Item 15A(1) but it was a composite product i.e. epoxy/phenolic adhesive formulation for manufacture of phenolic based insulation articles for which the factory was licenced under Tariff Item 68 and was paying duty on the insulation articles. The composite product was thus an integral process in the manufacture of their phenolic based insulation products. They submitted that the Departmental officers on regular visits never mentioned to them that the intermediate product with the aid of which they were manufacturing the insulation articles attracted Tariff Item 15A(1). They also submitted that the sample of the product was not chemically examined and without the test report, the Department cannot presume the product to be Phenol Formaldehyde resin. The appellants had also filed certain documents in support of their case and urged the Bench to consider them during the hearing of the appeal. The Departmental Representative objected to the filing of the fresh documents as the same amounted to additional evidence, which was not presented before the lower adjudicating authorities and the same could not be looked into here. The documents which are in the nature of additional evidence cannot be seen by the Bench at this late stage barring those which are herein referred to in the order which are not in the nature of any additional evidence. In the list of the documents produced are also previous show cause notices issued and orders passed thereon, which are not in the nature of additional evidence of which due notice can be taken of by the Bench.
5. The issue of the show cause notice was as a result of visit by the Central Excise officers on 30-7-1983 who had found the appellants having used a S.S. Resin Modulating plant which had been scrapped and sold at the time of their visit; for manufacture of phenolic based laminates captively. They recovered certain records, files, correspondence and recorded the statement of one Shri V.N. Verma, General Manager of the factory. Based on these facts, the show cause notice dated 12-3-1984 was issued, demanding duty for the alleged manufacture of the product during the period 28-2-1979 to 5-8-1983. The learned Collector after giving personal hearing, passed the impugned order holding the appellants to have manufactured phenolic resin and not epoxy modified phenolic adhesive solution and further held that not declaring the product in the classification list, tantamounted to mis-statement and suppression of facts and hence rejected the plea of time bar raised by the appellants and other plea of the product not being goods or capable of being bought and sold in the market was also rejected.
6. Shri D.N. Kohli, Consultant appeared for the appellants and vehemently and painstakingly put forth his arguments to show that the Collector had totally misapplied himself and misdirected wholly on misconceived notions of law, facts and circumstances of the case and hence the order is unsustainable. He referred to the entire documents placed by the appellants and submitted in the first instance that the case was time barred as no specific allegations of suppression, misrepresentation or misstatement of facts were alleged in the show cause notice. That the appellants had all along been very fair and had always been seeking advice from the Department; had never suppressed any process of manufacture and had filed classification list in time. The previous show cause notices issued reflected about the true picture and the Department had dropped earlier proceedings and without conducting tests on the sample, cannot rely upon dictionary meanings and rulings of courts to base the conclusion that the intermediate product was phenolic resin and that was capable of being bought and sold in the market/He contended that the intermediate product was not phenolic resin as had been alleged but epoxy phenolic adhesive formulations which had a very short shelf life, not capable of being marketed and not goods to attract excise duty. He further contended that as the product was captively consumed for manufacture of their end product glass textolite and never sold as intermediate product, it was not excisable or dutiable. Shri D.N. Kohli further relied upon large number of citations and rulings of Supreme Court, High Court and Tribunal in support of his contentions.
7. Shri A.S. Sunder Rajan, Departmental Representative stoutly supported the impugned order of the Collector and strongly relied upon the ruling in 1987 (29) ELT 288-T and submitted that in a similar case, the Tribunal had held that the intermediate product which was capable of captively consumed, was dutiable and the facts and circumstances of this citation squarely applied to the case in hand and that since the appellants had neither applied for licence nor had filed classification list but had mis-declared to the Department the captive production and utilisation of such intermediate product, therefore, the Collector was justified in invoking the larger period of five years under Section 11A of the Act. Shri D.N. Kohli, Consultant referred to the following rulings -
ADDITIONAL EVIDENCE "Additional evidence-contemporaneous documents, vital to the issue in appeal allowed to he produced Collector of Central Excise, Madras v. Chengalrayan Coop. Sugar Mills Ltd. 1988 (22) ECR 21 New-point - additional evidence produced in appeal admissible if it helps to arrive at a proper decision.
Collector of Customs (Prev.) Ahmedabad v. Shri Amarsingh P Rajput and 2 Ors. - 1989 (40) ELT 337 (Tri.) RETROSPECTIVE AMENDMENT : CAPTIVE CONSUMPTION Retrospective amendment levying duty on captive consumption came into effect 01 20-2-1982.
Central Excise Rule 9 and 49 Amendment to Rule 9 and 49 to levy duty on captive consumption applies to goods which are identifiable as excisable goods.
1984 ECR 113-B Show cause notice seeking recovery of differential duty is bound by limitation under Section 11A. Provisions of Section 51 of the Finance Act giving retrospective effect cannot override provisions of Section 11A.
The Uma Match Industries v. Collector of Central Excise, Madras - 1984 (14) ECR 17 BURDEN OF TAXABILITY - MARKETABILITY Marketability of goods is essential to attract excise duty Union Carbide India v. Union of India and Ors. - 1986 (24) ELT 169 (SC) Burden of proving taxability is on revenue Mysore Industrial Plastic Corporation v. Collector of Customs, Madras - 1983 (12) ELT 845 (Tri.) Burden of proving that a tax is leviable on the Department Modern Paper Industries v. Union of India and Ors. 1983 ECR 636-D Bombay Onus of classification on Government Indian Tool Manufacturers Ltd. v. Collector of Central Excise, Pune - 1983 (13) ELT 1170 (Tri.) If the revenue wants to tax a particular goods as such then the onus is on the Revenue Collector of Central Excise v. Calcutta Steel Industries and Ors. 1989 (39) ELT 175 (SC) Burden of proof - allegations made in the show cause notice are to be established by authorities; duty cannot be demanded merely on surmise.
Pratibha Silk Mills v. Collector of Central Excise, Vadodara - 1989 (39) ELT 118 (Tri.) Burden of proof is on prosecution. Defence need only show that prosecution has not established the case.
State of Punjab v. Gurmail Singh - 1989 (20) ECR 313 Simply because a certain article falls within the schedule it would not be dutiable under excise law if the said article is not goods known to the market. Marketability therefore, is an essential ingredient in order .... The test of marketability or capable of being marketed was not applied by the Tribunal. In that view of the matter (paras 8,9,13 and 14) Bhor Industries Ltd., Bombay v. Collector of Central Excise, Bombay - 1989 (40) ELT 200 (SC) Classification - Clay tiles an intermediate product after manufacture of glazed tiles, not dutiable if these are unvitrified porous unglazed tiles described in CBEC Circular Collector of Central Excise, Jaipur v. Ceramic (India) Ltd. - 1989 (21) ECR 289 The matter has been examined. It is observed that the container as such does not come into existence in an identifiable form and as a separate entry in a marketable condition...and the question of assessing the container separately does not arise 1989 (22) ECR 41-C Trade Notice Duty was sought to be levied on a.. product, namely, varnish ...
a brown viscous sticky mess in an unfinished condition, incapable of being marketed in that condition Union of India v. Shakti Industries Pvt. Ltd. - 1989 (39) ELT 509 (Bom.) TIME BAR : SUPPRESSION CANNOT BE RETROSPECTIVE Limitation goes to the root of the matter hence case to be disposed of at the preliminary stage without going into matter Union Carbide India Ltd. v. Collector of Customs, Calcutta - 1984 (17) ELT 505 (Tri.) Show cause notice must clearly state the act of suppression and how the assessee made wilful misstatement 1984 ECR 60-B Trade Notice Time bar of five years will apply where evasion is intentional and not mere evasion 1983 ECR 2260 (Orissa) Department held to have knowledge of the manufacture of raw materials at one unit if the fact has been disclosed in respect of final product being manufactured at another unit if both the units are under the jurisdiction of the same Collector Bi-Metal Bearings Ltd. v. Collector of Central Excise, Madurai - 1989 (22) ECR 417 A fact well known in industry has also to be presumed to be known to the officers 1983 ECR 291-D Trade Notice Demand is time barred as there was no wilful intent to evade duty. The assessee being under the bonafide belief that their product were not dutiable Coca Cola Export Corporation N. Delhi v. Collector of Central Excise, N. Delhi - 1986 (26) ELT 1025 (Tri.) Non-declaration of facts generally known is no suppression Nayek Associates (A/c. Nayek Paper & Board Mills) Distt. Burdwan - 1985 (21) ELT 819 (Tri.) Extended limitation cannot be invoked if the authorities know or could have known the activities of the assessee at the relevant time Secals Ltd., Tamilnadu v. Collector of Central Excise, Madras - 1986 (24) ELT 64 (Tri.) Unlimited demand is a cover for officers' own negligence Sundaram Industries Ltd. v. Collector of Central Excise, Madras - 1987 (32) ELT 212 (Tri.) Limitation - six months and not the longer period of five years is applicable since the information withheld was not deliberate but only a result of interpretation Collector of Central Excise, Hyderabad v. Chemphar Drugs & Liniments, Hyderabad - 1989 (40) ELT 276 (SC) When goods are done in an honest belief no penalty is called for Orient Paper & Industries Ltd. v. Assistant Collector of Central Excise, Rourkela - 1988 (35) ELT 624 (Ori.) Penalty unjustified in the absence of intent to evade duty Coca-cola Export Corporation, New Delhi v. Collector of Central Excise, New Delhi - 1986 (26) ELT 1025 (Tri.) Retrospective amendment of Rule 9 and 49 declares that no person shall be punishable retrospectively Madan Cold Storage - 1985 (19) ELT 265 (Tri.) Retrospective effect cannot be given to an amendment such as later specification of width of lining materials at 871/2 cm in the 1984 policy, if it creates new offences or increases penalties or attracts confiscation for existing offences retrospectively.
M/s. East Punjab Traders M/s.P.C.Jain&Co.
Junta Traders v. Collector of Customs, Bombay - 1988 (34) ELT 98 (Tri.) If the violation of the provisions of a licence is not an, offence, at the time of the contravention, It is not punishable in terms of a subsequent amendment of the Act Bharat Shivji and Anr. v. State - 1988 (17) ECR 463
8. Shri A.S. Sunder Rajan the learned Departmental Representative, relied upon the following rulings :-
Formica India Division Pune v. Collector of Central Excise, Bombay - 1984 (17) ELT 590 (Tri.) Hindustan Petroleum Corporation Ltd. v. Collector of Central Excise, Bombay - 1984 (18) ELT 409 (Tri.) V.S.T. Tillers Tractors Ltd. v. Collector of Central Excise, Bangalore - 1987 (31) ELT 95 (Tri.) Collector of Central Excise, Ahmedabad v. Jay Enterprises and 5 Ors. - 1987 29 ELT 288 Madan Cold Storage v. Collector of Central Excise, Kanpur- 1985 19 ELT 265
9. We have heard both the sides, carefully perused the entire records, submissions of the parties and rulings cited by them. The main question that arises for consideration is as to whether the show cause notice is hit by time bar and if not, then as to whether the said product produced by the appellants was phenolic resin as alleged in the show cause notice or epoxy phenolic adhesive formulation as contended by the appellants, which is a base material for manufacture of the end product, glass textolite on which duty is paid by the appellants and whether the said material is capable of being marketed and being bought and sold in the market.
10. We shall proceed to examine the question of tune-bar under Section 11A and as to whether the Department was justified in invoking extended period of five years on the ground of misdeclaration, suppression of facts and manufacturing, captively consumed product without licence and filing classification list. On closer examination of the show cause notice dated 9-3-1984, it is observed that there is no clear indication of suppression, mis-representation of facts. The learned Collector while answering this question, referred to the following portion in the show cause notice to draw the inference of suppression, namely -
"Thus the party appears to have evaded payment of Central Excise duty to the tune of Rs. 2,72,011.50 (Basic) and Rs. 13,600.58 (Special) inasmuch as they were engaged in the production and clearance of phenolic resin without declaring the fact to the Central Excise Department".
11. The appellants had seriously contended that the demand was time-barred and that there was no suppression or misdeclaration, but, on the other hand, there was mention of the inputs to be used in the end product throughout their correspondence, classification list, in previous show cause- notice, in adjudication orders. The learned Collector has not given any serious consideration to these materials before him to examine the question of time-bar. The appellants had vehemently contended that nothing was hidden from Department and had always been fair, bonafide and at every point of time, had shown to the officials on visit the entire manufacturing process. On the mere perusal of these materials produced before us and also which was before the Collector, it is abundantly clear that the appellants had clearly indicated in classification lists that the Glass textolite was to be manufactured from different synthetic resins viz. Epoxy (including semi-conducting of magnetic varieties) phenolic, polyester and silicone. It had declared that treated glass cloth and derivatives therefrom, treated with epoxy, phenolic, silicon and other resins/resin formulations. In the annexures to the classification lists filed by the appellants they had clearly indicated the principal raw materials used in the manufacture of finished product was "Resins (epoxy, phenolic, polyesters etc)". Even in the enclosure to the letter dated 11-3-1981 to Assistant Collector seeking proforma credit, the appellants had made out in the column final finished product as follows -
"Insulation articles in sheets form based on different synthetics resins viz. epoxy (including semi-constructing and magnetic varieties). Phenolic polyester and silicone, (b) insulation fittings,(c) treated glass cloth and derivatives therefrom, treated with epoxy, phenolic silicones and other resins/resin formulations".
12. In their letter dated 27-4-1975, written to the Excise authorities on the subject of categorisation of glass textolite, they have informed the Excise Commissioner in the second para of the letter as follows -
"Glass textolite is a special laminate manufactured with 2 basic ingredients viz. glass cloth and resin. The former, we believe, is not an exciseable item. The resin can be of different types. BHEL requirements would necessitate the use of epoxy as well as & phenolic resin. In addition, we shall use various thinners eg. MEK, Toluene, methylated spirit etc. The glass cloth is impregnated in a special plant with diluter resins."
13. The Superintendent, Customs and Central Excise, in his letter dated 31-1-1978 in response to the appellants letter of 8-12-1977, has replied in para (3) as follows -
"You have already been informed orally that your product viz. glass tex-tolite/laminates treated with various resin systems, made out of glass fabric or such products made out of raw materials (glass fabric etc.) supplied by BHEL are covered under Tariff Item 22-f and are liable to duty at appropriate rate."
14. In the approved classification list of 13-6-1980, the appellants have shown in column (i) of Classification list and described the goods as "All other goods not elsewhere specified viz. Insulation articles in sheet form based on different synthetic resins viz. epoxy (including semi-conducting of magnetic varieties) phenolic, polyester and silicone). In column 2 they have described as insulation fittings, treated glass cloth and derivation therefrom, treated with epoxy, phenolic silicone and other resins/resin formulations". In the annexure to the classification list that they have given a detailed description of the excisable goods and also the detailed process of manufacture. They have described about the use of the epoxy, phenolic products for making their final product insulation articles and fittings etc.
15. The Department had issued a show cause notice dated 15-7-1981 on the ground that they had manufactured glass fabrics, reinforced plastics, i.e. Textolite and other technical laminations falling under Tariff Item 15-A(2) without obtaining Excise licence and cleared goods and a demand had been raised. By an order dated 9-11-1981 by the same Collector who passed the impugned order, had dropped the proceedings taking into consideration the letter of Supdt. dated 30-1-1978 and letters dated 1-5-1979 and 22-12-1978 referred supra, letter of the appellants dated 27-4-1975 and the classification lists filed by them. In this order, the Collector has referred to the use of epoxy resins or phenolic resins by the appellants in the manufacture of their product glass textolite.
16. Another proceedings by show cause notice dated 17-3-1981 had been commenced by the officers of the Central Excise Department against the appellants under Rules 9,197,173-B, 173-F, 173-G, 52-A of the Central Excise Rules 1944 and demanded duty for the period 10-5-1979 to 14-1-1980. Again the same Collector by his order dated 2-11-1981, confirmed the demand for Rs. 2,47,987.23 P. for the period 10-5-1979 to 14-1-1980. The appellants appealed to the Central Board of Excise & Customs. The Board by its order dated 24-4-1982 held that "The Board is not satisfied that there has been any reasonable case made out for suppression of information or misdeclaration in the face of the fact that the appellants themselves had been approaching the Department all the time".
17. But, however, only the ground of classification of the product under Tariff Item 68 and not under Item 15-A(2) confirmed the classification. The Board had set aside the penalty of Rs. 5,000/- imposed by the Department as the appellants had themselves been approaching the Department for classification. Thus on the perusal of all these materials, it is very clear that the appellants had been all the time in contact with Department and as rightly contended by the Consultant for the appellants, the appellants had never suppressed or misdeclared any of the process of their manufacture. The records and previous proceedings, conduct of the appellants had been very fair and clear before the Department. The Department had like-wise kept extreme vigil over them. There were two proceedings against them. As rightly contended by the Consultant, there appears to be a sort of vindictive approach of the Department despite a very fair and clear exemplary conduct of the appellants. The appellants had always been anxious to keep their record straight. Instead of assisting them in their efforts, the Department had been issuing notices and conducting proceedings against them. Thus the Department cannot now by its show cause notice dated 9-3-1984 contend that the appellants had kept the production of the intermediate raw material a secret and suppressed the material facts. It is difficult to imagine how the Department could be unaware when large number of officials of the Department were visiting the appellants and more so when earlier searches had revealed all these alleged manufacture. It is equally strange how the Department could have remained silent if the appellants had really suppressed dutiable products as contended in the show cause notice dated 9-3-1984 when all the while, they were visiting and initiating proceedings against the appellants. The Board by its order dated 24-4-1982 had observed that the Department had not made out a case for suppression or misdeclaration by referring to the clear conduct of the appellants. This observation of the Board cannot be lost sight of, in view of the painstaking efforts of the learned Consultant in demonstrating that the appellants bore an excellent record of high conduct and respect for rules and not in nurturing any intentions of evading any taxes.
18. The materials and records clearly show that the appellants had not suppressed any fact and also that the show cause notice dated 9-3-1984 has not clearly made out a case of appellants installing one S.S. Resin modulating plant and having produced and manufactured phenolic resin for the period 28-2-1979 to 5-8-1983. The appellants succeed on the ground of time bar as the Department has not succeeded in showing that they were in dark about the appellants' manufacture and producing phenolic resin for the said period. The Department had been making regular visits, raids, searches and had initiated two proceedings during this very period and having remained silent without making out a case they now cannot raise a demand and put up an innocent plea of the Department being kept in dark about the activities of the appellants.
19. The next question does not remain for determination when we hold that the Department has failed to make out a clear case for extended period of limitation to claim duty for the period 28-2-1979 to 5-8-1983. However, we wish to discuss in brief these points also.
20. The Department has not put forth any evidence of the appellants having produced or manufactured the said intermediate product during the period. It has been able to build the case on the basis of sale of the kettle by the appellants and on that basis drawn the conclusion of the appellants having produced the said item as alleged in the show cause notice. It is well settled that suspicion however, grave cannot take the place of proof. Moreover, the appellants had always been contending that what they produced was epoxy modulated phenolic adhesive solution which had a very short shelf life, which could not be marketed and thus were not goods and excisable to duty. The learned Collector had concluded that the appellants had produced intermedicate tailor-made product on the basis of dictionary meaning of the term "phenolic resin" and further concluded on the basis the product being commercial. We are unable to agree with this conclusion. The Department had not taken out the samples tested to find out what the product had been produced and manufactured by the appellants. Such a conclusion to be drawn on mere surmises and presumptions is not correct more so when the appellants had seriously contended about the nature of material used by them for the final product. They had raised questions of its marketability and shelf life; which had not been gone into at all. Without any basis or materials or evidence will be too presumptuous and incorrect. The several rulings relied upon by the learned Consultant lays down the rulings with regard to marketability of the intermediate product. It is clear that the said product should have shelf life of longer period. The appellants had produced the correspondence they had with M/s. Hercourt Butler Technological Institute, Kanpur with regard to failure of the input epoxy phenolic resin produced by them and the replies and advices received from the Institute by them. A perusal of these letters indicated that the input resin which they attempted to make had been a failure without any shelf life and could not be properly used by them in manufacture of their end product. These contentions could not be easily rejected by the Collector. It required examination and close scrutiny. But in the absence of the test sample, the Collector could not have drawn the right conclusion. Therefore, he had fallen on the meaning and definition of the term 'phenolic resin' and its uses and drawn the conclusion of its marketability. In our opinion such conclusions are too far fetched.
21. Sh. A.S. Sunder Rajan referred to a citation in the case of Collector of Central Excise, Ahmedabad v. Jay Enterprises and 5 Ors. 1987 (29) ELT 288 and persuaded us to draw the anology and infer that the intermediate product produced by the appellants is the same as referred to in this citation wherein the Tribunal had held that the intermediate product was marketable. We are unable to apply the ruling as there is a serious dispute raised with regard to the intermediate product produced by the appellants and also about its shelf life and marketability. In absence of test samples, no such conclusions can be drawn.
22. As we have held, the show cause notice dated 9-3-1984 as time barred, the recovery is bad in law. We have examined in short the rival contentions and also concluded that no findings can be based in absence of the test samples and the exact material produced by the appellants. In absence of the materials, the benefit has to be given to the assessee as the Revenue cannot be said to be unaware of such production in view of overwhelming evidence of the presence of Revenue officials in the appellants premises and previous proceedings. In the result, the appellants succeed and the impugned order of the Collector is set aside. Appeal allowed.
We have not referred to the several citations and rulings placed by the learned Consultant as the said principles laid down in these citations are well settled propositions of law and facts.
The cross appeal filed by Revenue is also dismissed.
D.C. Mandal, Member (T)
23. I have perused the order written by Shri Peeran, Member (Judicial). I agree with his view that there was no suppression of facts on the part of the appellants warranting application of five years' time-limit in issuing show cause notice demanding duty under proviso to Section 11-A(1) of the Central Excises & Salt Act, 1944. I, therefore, hold the demand for duty to be time-barred and allow the appeal on this ground only, without going into the merits of the case, e.g. nature of the goods under dispute, their marketability and exciseability, etc. I do not, therefore, subscribe to the last sentence of paragraph-19 and the subsequent paragraph-20 to 22 of the order written by Shri Peeran. I also do not endorse the manner of presentation of the case laws in paragraph-7 of his order.
24. The cross-objection filed by the Revenue fails on ground of limitation alone. Hence, the same is dismissed without going into other points.