Judgment:
1. These two appeals Appeal Nos. E/802/90-D and Appeal No. E/4488/93-D have been filed against the decision of the Commissioner of Central Excise and Customs, Pune made two orders No. 72/CEX/1989, dated 6-12-1989 and 33/CEX/1993, dated 27-4-1993. In both appeals question involved is about eligibility of Modvat credit in respect of items which have been consumed captively after manufacturing in the same factory in the sense they are used in or in relation to manufacture of final products. The items are like being storage bins, racks, hand trolleys, partition etc. referred to in column No. 3 originally prior to 1989.
2. The assessees were manufactured a finished products mainly automobile parts motor vehicle and its spare parts. The items in dispute were also manufactured by them in their factory for captive consumption prior to 1986. They were classified under Tariff Item 68 of the Central Excise Tariff Act, 1985. The appellants were enjoying the benefit of exemption under Notification No. 118/75. After Central Excise Tariff Act came into existence they did not file any classification list for these items. They filed classification list on 19-9-1987 w.e.f. 14-3-1987, show cause notices have been issued for the period from 31-3-1986 to 3-8-1987 in respect of Appeal No. E/4488/93-D show cause notice was dated 18-3-1988 and in respect of Appeal No.E/802/90-D show cause notice was dated 20-12-1989. The ground taken in show cause notice was for failure to take licence etc. for manufacture of furniture, for non-filing of classification list and non payment of duty. The main reply of the assessee was that these items of goods were manufactured by them for captive consumption from 1972 onwards knowledge of the Department was well known. They therefore stressed the plea of limitation especially on a point that there cannot be longer period of limitation as there was no suppression, fraud etc. The adjudicating authority negatived their contention. Hence the appeals.
3. Shri S.A. Gundecha, Company Secretary on behalf of the appellant had argued that when the Department knew the products manufactured by them from 1972 onwards, the invocation of larger period of limitation is not warranted in law. He further states that where the assessee with a deliberate intention of suppressing the fact then only the department can invoke larger period of limitation. Shri B.K. Choubey, Id. DR adopts the reasoning.
4. We have considered the submissions. It is a fact that the assessee sought to take benefit of Notification No. 217/86 when that the point was involved then question arose as to whether they would be eligible for Modvat? The representative fairly concedes that they were not eligible for Modvat, company having such huge turnover manufacture cannot be ignorance of law. Even if the assessee is to manufacture the goods from 1972 onwards knowledge of the department does not disentitle it from invoking the provisions of proviso to section 11 A of the Central Excise Act in view of the judgment of Tribunal in the case of Nizam Sugar Factory v. Collector of Central Excise [1999 (114) E.L.T.429 (Tribunal)]. In our view the ratio of the said judgment squarely applicable to the facts of the present case. The appellants have clearly violated provisions of law in not filing the classification list. Hence the appeals are devoid of merits and they are dismissed.