Case: M/S. Larsen &amp; Toubro Ltd Vs. Commnr. Of Central Excise, Pune-Ii

of the assessee. We are unable to accept the contention of the learned counsel. The tenor of the order, the assessee had produced certain documents such as registration form, trade mark authorities assigning the trade mark to them but the fact remains that there was material evidence by way of seizure of goods manufactured by M/s. P & B Laboratories bearing the same logo much after the alleged transfer of trade mark to the appellants" discloses that the Tribunal accepted that there has been an assignment but proceeded to deal with the case of inapplicability of the exemption under the notification on the ground that the logo was being used by M/s. P & B Laboratories also. We have already indicated above that use of logo of the manufacturer by third parties is alien for purposes of denial of exemption on the strength of para 7 of the notification. In this view of the matter, we are unable to uphold the order of the Tribunal denying the exemption to the assessee.20. In any event, the ground that the assessee has suppressed the fact that M/s. P & B Laboratories was also using the logo for availing the benefit under the notification cannot be a valid reason to invoke the proviso to Section 11A of the Act. There is no obligation on the owner of a logo to make a roving enquiry to ascertain whether any other person is also using his logo and disclose it to the authorities to avert a possible allegation of suppression of fact for purposes of invoking the proviso." 17. Yet again in Nizam Sugar Factory vs. Collector of Central Excise, A.P., [2006 (197) ELT 465 (SC)] the ratio rendered in P & B Pharmaceuticals Ltd. (supra) has been reiterated stating: "Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of the assessee/appellant." 18. In the said decision, this Court followed the earlier judgment of the Division Bench of this Court in ECE Industries Limited v. Commissioner of Central Excise (2004) 13 SCC 719 = 2004 (164) ELT 236 , wherein it was categorically stated: "6. Appellant was served with a second SCN by the Collector on 16.7.1987 alleging that the appellant was supplying carbon dioxide to another unit as per agreement dated 19.3.1983; that they had not taken necessary licence; had not followed the procedure prescribed under the rules; and had not discharged duty liability. The said SCN covered the period of assessment years 1982-83 to 1986-87. Appellant responded to the second SCN and took the plea that the SCN under consideration was practically a repetition of the allegations contained in the SCN dated 28.2.1984 and for the period April, 1982 to September, 1982 the department had raised demands under two different SCNs. It was pointed out that carbon dioxide in the impure form was not marketable as it also contained carbon monoxide in lethal proportions. It was contended that they were under bona fide belief that since such impure carbon dioxide was not exigible to payment of duty, they were not required to file either Classification List or the Price List or take out licence. It was submitted that resorting to extended period of limitation under Section 11A(1) was not justified in the circumstances of the case. Appellant was served with the third SCN on 12.9.1988 for the period 16.3.1988 to 27.6.1988 on the same allegations. Assessee filed its reply in terms of the earlier replies i.e. reply to SCN dated 16.7.1987. The adjudicating authority did not accept the appellants contention and the demands raised in the SCN were confirmed.xxx xxx xxx8. Without going into the question regarding Classification and marketability and leaving the same open, we intend to dispose of the appeals on the point of limitation only. This Court in the case of P & B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in (2003) 3 SCC 599 = 2003 (153) ELT 14 (SC) has taken the view that in a case in which a show cause notice has been issued for the earlier period on certain set of facts, then, on the same set of facts another SCN based on the same/similar set of facts invoking the extended period of limitation on the plea of suppression of facts by the assessee cannot be issued as the facts were already in the knowledge of the department." 19. Furthermore, extension of the period of limitation entails both civil and criminal consequences and, therefore, must be specifically stated in the show cause notice, in absence whereof the Court would be entitled to raise an inference that the case was not one where the extended period of limitation could be invoked. [See Commissioner of Central Excise, Chandigarh vs. M/s. Punjab Laminates Pvt. Ltd., (2006 (7) SCC 431 )] 20. Another aspect of the matter cannot also be lost sight of. Appellant as also the Konkan Railawy raised a definite plea of bona fide. Such a plea had not been rejected. As a matter of fact, while considering imposition of penalty under Section 11A of the Act, the Commissioner has refused to impose any penalty upon the appellant on the premise that it was not guilty of any act of mala fide. We, therefore, keeping in view the facts and circumstances of this case, are of the considered view that the impugned judgment cannot be sustained. It is set aside accordingly. We hold that the Revenue was not justified in invoking the extended period of limitation in the instant case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. The Tribunal in its order dated 25.4.2003, in the case of M/s. B.E. Billimoria & Co. Pvt. Ltd. opined that similar goods manufactured by others do not attract the provisions of the Central Excise Act. It is stated that the same bench of the Tribunal in its judgment dated 10.5.2004, in Ragunath Ramchandra Shanbhag (supra), came to a similar conclusion.12. During the period in question beingno direct decision on the point involved was available. It was noticed that different benches of the Tribunal in different cases had rendering their decisions differently. In the case of Billimoria (supra), it was categorically held that manufacture of PSC Girders would not attract the provisions of Central Excise Act, 1944.13. Correctness of Billimoria (supra) was questioned by another Bench of the Tribunal and the matter was referred to a larger Bench. The larger Bench in Asian Techs Ltd. (supra) relying upon or on the basis of a large number of decisions of this Court opined that the excise duty was payable and the principles of works contract would not be applicable in a case of this nature. We, therefore, accept the contention of the learned counsel that it was not a case where element of suppression extended to apply to extended period of limitation. It is also not a case where the appellant did not plead bona fide. It is furthermore not a case where the Tribunal and consequently this Court, could have arrived at a finding that the appellant took recourse to suppressio veri.14. Acts of fraud or suppression, it is well settled, must be specifically pleaded. The allegations in regard to suppression of facts must be clear and explicit so as to enable the noticee to reply thereto effectively. It was not the case of the revenue that the activities of the appellant were not known to it.15. Admittedly, when the first show cause notice was issued, the extended period of limitation was not resorted to. A notice should ordinarily be issued within a period of six months (as the law then stood) i.e. within the prescribed period of limitation but only in exceptional cases, the said period could be extended to 5 years. When in the original notice, such an allegation had not been made, we are of the opinion that the same could not have been made subsequently as the facts alleged to have been suppressed by the appellant were known to them.Furthermore, extension of the period of limitation entails both civil and criminal consequences and, therefore, must be specifically stated in the show cause notice, in absence whereof the Court would be entitled to raise an inference that the case was not one where the extended period of limitation could be invoked.Another aspect of the matter cannot also be lost sight of. Appellant as also the Konkan Railawy raised a definite plea of bona fide. Such a plea had not been rejected. As a matter of fact, while considering imposition of penalty under Section 11A of the Act, the Commissioner has refused to impose any penalty upon the appellant on the premise that it was not guilty of any act of mala fide. We, therefore, keeping in view the facts and circumstances of this case, are of the considered view that the impugned judgment cannot be sustained. It is set aside accordingly. We hold that the Revenue was not justified in invoking the extended period of limitation in the instant case.