Judgment:
1. This appeal is directed against the order-in-original dated 24-9-1986 of Collector of Central Excise, Coimbatore.
2. The issue relates to durability of certain items of plant and machinery claimed to be non-dutiable by the appellants.
3. Arguing for the appellants, the Learned Advocate submits that they filed a classification list on 28-8-1981 declaring plant and machinery for chlorine-Scrubbing and disposal system and claimed it as non-excisable. On 4th March, 1985, Superintendent of Central Excise visited their factory for spot study with reference to classification list filed by them. On 25-3-1985 revised classification list was filed again declaring the goods as non-excisable. The goods were cleared during the period 31st January, 1985 to 30th March, 1985 on gate passes. RT 12 for January, 1985 covering gate passes dated 31-1-1985 and 15-3-1985 were also assessed finally. On 31-1-1985, RT 12 for March, 1985 covering the two other gate passes was also assessed finally. On 14th June, 1985 however,' they were issued a show cause notice seeking to classify the impugned goods as excisable goods. On 1st July, 1985, however, this show cause notice was withdrawn. The classification list was slightly modified unilaterally and the goods were classified as excisable under TI 68. This matter was remanded to Assistant Collector on 27th May, 1986. However, in the meantime, a fresh show cause notice was issued on the same set of facts alleging the goods to be excisable. These goods were finally held to be excisable through order of the Collector dated 24-4-1986 which is under challenge.
3.1. Two show cause notices having been issued on identical grounds, one of which was withdrawn earlier, would clearly point out to absence of any suppression. Extended time, in the circumstances, cannot be invoked since the department was already aware of the position in regard to the goods. In this connection, the Learned Advocate cites the case of Kamal Plywood & Allied Indus. Pvt. Ltd. v. Collector of Central Excise, 4. The learned DR reiterates the department's arguments and submits that the first show cause notice was withdrawn since it had been issued by the Superintendent of Central Excise and the proper authority after amendment of Section 11A, to invoke extended period was only Collector and, therefore, the second show cause notice was issued.
6. We find when two show cause notices are issued on identical set of facts extended period cannot be invoked. On going through the revised show cause notice dated 27-5-1986, we also find that no ingredients as would justify extended period have been spelt out. The show cause notice merely alleges that the appellants removed the goods by "misclassifying" the goods in classification list. In order to invoke extended period under Section 11A the appellants have to be put on notice as to which of the acts of omission and commission they have committed. In the absence of it the extended period cannnot be sustained. [CCE v. H.M.M. Ltd. - 1995 (76) E.L.T. 497 (S.C.)].
7. We are, therefore, satisfied that, in the circumstances of the case, the extended period under Section 11A cannot be sustained.
8. In the result, without going into the merits of the case as such, we hold that the demand admittedly issued beyond period of 6 months is time-barred. In view of this, we set aside the impugned order and allow the appeal on the limited question of time bar. The appellants shall be entitled to consequential relief, if any, admissible in accordance with law.