- (1.) This appeal is against the judgment of the Customs excise and Gold (Control) Appellate Tribunal dated 27th May, 1996.
(2.) Briefly stated the facts are as follows : The appellants are in the business of spinning cotton yarn. It is claimed that in Salem there is acute power shortage. Thus two generator sets were installed in their factory one on 13th March, 1991 and the second on 15th january, 1992. Show Cause Notice dated 2nd July, 1993 was issued to them claiming duty manufacture of generating sets. The Collector confirmed demand for duty holding that there was deliberate suppression of the fact of manufacture of generating sets. The appeal preferred by the appellants has been dismissed by the Tribunal by the impugned judgment.
(3.) It is submitted that the extended period of limitation was not available as there was no wilful suppression and in any case generators being huge items, the department was always aware of their installation. It was submitted that the appellants and all the other people in the locality were aware of a trade notice issued by the Delhi Collectorate dated 24th December, 1986 which clarified that diesel generating sets if assembled at site, out of the duty paid components, and which are fixed to the ground as a fairly permanent fixture and are not ordinarily intended to be removed from the place of installation, would not attract excise duty. It was submitted that on the basis of this trade notice the appellants were under a bona fide belief that no duty was payable on the generating sets. Reliance was placed upon the case of padmini Products v. Collector of C. Ex. reported in 1989 (43) ELT 195 (SC) wherein it has been held that the extended period of five years is inapplicable if there is mere failure or negligence of the manufacturer to take out licence or pay duty when there was scope for doubt that goods were not dutiable. It was held that where by virtue of trade notice there is doubt whether a good is dutiable then it could not be said that there was any fraud, collusion, wilful mis-statement or suppression of facts or contravention of rules with intent to evade duty. It was held that in such cases the extended period of limitation would not be available. Reliance was also placed upon the authority of this Court in the case of Tamil Nadu Housing board v. Collector of Central Excise, Madras reported in 1994 (74) ELT 9 (SC) wherein also it has been held that the extended period of limitation would be invokable only if there was suppression, fraud, collusion and intent to evade payment of duty. It was held that the initial burden was on the department but once the department discharged that burden it shifted on the assessee.;