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As per case facts, the assessee, Dharampal Satyapal, was found manufacturing a compound (kimam) containing chewing tobacco without obtaining registration or paying central excise duty, claiming it was an unmarketable
...intermediate item used captively. Departmental investigations revealed clandestine manufacturing and clearing, leading to a show-cause notice demanding duty, interest, and penalties, invoking an extended period of limitation due to suppression of material facts. The commissioner upheld the excisability and classification of kimam, the invocation of the extended limitation period, and denied proforma/modvat credit. The assessee appealed, arguing non-excisability, bona fide impression, and entitlement to credit, but the Tribunal largely upheld the commissioner's order, remanding only the applicability of an exemption notification and penalty quantum. The question arose whether the Tribunal was justified in upholding the excisability and classification of the kimam, the rationale for invoking the extended period of limitation under the proviso to section 11A(1), and the eligibility for proforma/modvat credit. Finally, the Supreme Court found no merit in the assessee's submissions. It affirmed that marketability is an essential attribute of manufacture for charging duty and that the kimam, a distinct and identifiable product used as a preparation for branded chewing tobacco, was indeed marketable and classifiable. Regarding the extended limitation period, the court found clear evidence of deliberate suppression, including operating unlicensed units, failing to maintain statutory records, and misleading descriptions in challans, which negated any claim of bona fide impression. The burden to prove bona fides rested with the assessee, which they failed to discharge. The appeals were dismissed, with the court finding no infirmity in the Tribunal's judgment on excisability, clandestine manufacture, and removal.
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