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CASE NO.: Appeal (civil)  3158 of 2000

PETITIONER: M/s. Anand Nishikawa Co.Ltd.

RESPONDENT: Commissioner of Central Excise,Meerut

DATE OF JUDGMENT: 23/09/2005

BENCH: S.N. Variava & Tarun Chatterjee

JUDGMENT: J U D G M E N T  

TARUN CHATTERJEE J.

               Appellant M/s. Anand Nishikawa Co. Ltd. is a  manufacturer of rubber profiles which product after extrusion is  subject to notching or drilling of a few holes or slitting. The  appellant had classified such extruded rubber profiles under sub- heading 4008.29 of the Central Excise Tariff which attracted Nil  rate of duty.    The Revenue, however,  classified such rubber  under heading 4016.19.

       According to Revenue, the operations like notching,  drilling and slitting are "further working" and in view of Note 9  to Chapter 40, these goods fall outside Heading 40.08.     Accordingly, a show cause notice  was issued in October, 1995  demanding duty of over Rs.2.18 crores for the period from  September 1990 to February, 1994 under the proviso to Section  11A of the Central Excise Act, 1944 (hereinafter referred to as  ’the Act’). The Commissioner by his order dated 2nd August 1996  discharged the show cause notice, inter-alia, on the ground that  proviso to Section 11A of the Act was inapplicable in the facts of  the case. In his order, the Commissioner observed that the  authority had knowledge of the  manufacturing process of the  appellant and was seized of the matter from the very beginning  and on few occasions, the department officers visited the factory  for collection of samples and study etc.   Adverse inference was  also drawn by the Commissioner in his order dated 2nd August,  1996 against the department as show cause notice did not deal  with the correspondence exchanged between the appellant and  the department on the issue of classification from the year 1988.     An appeal was carried by the Department against the aforesaid  order of the Commissioner before the Customs, Excise and Gold  (Control) Appellate Tribunal, (hereinafter referred to as  "CEGAT") New Delhi which was allowed by the CEGAT on the  issue of limitation that is to say extended period of limitation  under proviso to Section 11A of the Act would be available  in  the facts of this case.   However, the matter was sent back to the  Commissioner for a decision on the question of classification and  availability of MODVAT credit etc.     Against this order of  remand, passed by the CEGAT, this appeal has been filed under  section 35(L) of the Act in this Court which, on admission, was  listed for final disposal.

       We have heard Mr. V. Sridharan, learned counsel appearing  for the Assessee/Appellant and Mr. Mohan Parasaran, the learned  Additional Solicitor General    for the Revenue.   We have

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carefully examined the show cause notice, the order of the  Commissioner discharging the show cause notice and the order  of the CEGAT holding that the authority was entitled to invoke  proviso to Section 11A of the Act in the facts of the case but  remanding the case, as noted herein before, to the Commissioner  for a fresh decision on the question which of the classifications,  namely 4008.29 or 4016.19 of the Central Excise Tariff in  respect of the product in question, would be attracted in the facts  of this case and also whether MODVAT facilities would be  available or not.                                                                                The only question that needs to be decided in this  appeal is whether the extended period of limitation under proviso  to Section 11-A of the Act would be available or not.    Before  we take up, for our consideration, this question, involved in this  appeal, it would be fit and proper to refer to erstwhile Rule 10 of  the Central Excise Rules and section 11 A of the Act prior to and  after its amendment in 2000.   On the question of recovery of  duties not levied or not paid or short-levied or not paid in full or  erroneously refunded,  erstwhile Rule  10 of the Central Excise  Rules as it read at the relevant point of time and so far as  it is  relevant for our purposes is set out  as under :  "Rule 10. Recovery of duties not levied or not paid,  sort-levied or not paid in full or erroneously  refunded. \026 (1) Where any duty has not been levied or  paid or has been short-levied or erroneously refunded  or any duty assessed has not been paid in full, the  proper officer may, within six months from the  relevant date, serve notice on the person chargeable  with a duty which has not been levied or paid, or  which has been short-levied or to whom the refund has  erroneously been made, or which has not been paid in  full, requiring him to show cause why he should not  pay the amount specified in the notice:"

Provided that \026

(a)     where any duty has not been levied or paid, has  been short-levied or has not been paid in full, by  reason of fraud, collusion or any willful mis- statement or suppression of facts by such person  or his agent, or (b)     where any person or his agent, contravenes any  of the provisions of these rules with intent to  evade payment of duty and has not paid the duty  in full, or (c)     where any duty has been erroneously refunded by  reason of collusion or any willful mis-statement  or suppression of facts by such person or his  agent, the provisions of this sub-section shall, in  any of the cases referred to above, have effect as  if for the words "six months", the words "five  years" were substituted.

       Proviso to this Rule 10 as noted hereinabove, however,  increases a period of six months to five years where there has  been "suppression of facts" or the like on the part of the Assessee.  Section 11A of the Act was introduced by Act No. 25 of 1978  w.e.f. 17.11.1980 in substitution of Rule 10 which was omitted.  Section 11A of the Act was as under :-  "11-A. Recovery of duties not levied or not paid or  short-levied or short-paid or erroneously refunded.  \026 (1) When any duty of excise has not been levied or  paid or has been short-levied or short-paid or  erroneously refunded, a Central Excise Officer may,  within six months from the relevant date, serve notice

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on the person chargeable with the duty which has not  been levied or paid or which has been short-levied or  short-paid or to whom the refund has erroneously been  made, requiring him to show cause why he should not  pay the amount specified in the notice:

       Provided that where any duty of excise has not  been levied or paid or has been short-levied or short- paid or erroneously refunded by reason of fraud,  collusion or any willful misstatement or suppression of  facts, or contravention of any of the provisions of this  Act or of the rules made thereunder with intent to  evade payment of duty, by such person or his agent,  the provisions of this sub-section shall have effect, as  if, for the words "six months", the words "five years"  were substituted."                  Section 11-A was further amended in the year 2000 and the  amended provision runs as under:-         "11-A. Recovery of duties not levied or not  paid or short-levied or short-paid or erroneously  refunded. \026 (1) When any duty of excise has not been  levied or paid or has been short-levied or short-paid or  erroneously refunded whether or not such non-levy or  non-payment, short-levy or short-payment or  erroneous refund, as the case may be, was on the basis  of any approval, acceptance or assessment relating to  the rate of duty on or valuation of excisable goods  under any other provisions of this Act or the Rules  made thereunder, a Central Excise Officer may, within  one year from the relevant date, serve notice on the  person chargeable with the duty which has not been  levied or paid or which has been short-levied or short- paid or to whom the refund has erroneously been  made, requiring him to show cause why he should not  pay the amount specified in the notice:

       Provided that where any duty of excise has not  been levied or paid or has been short-levied or short- paid or erroneously refunded by reason of fraud,  collusion or any willful misstatement or suppression of  facts, or contravention of any of the provisions of this  Act or of the rules made thereunder with intent to  evade payment of duty, by such person or his agent,  the provisions of this sub-section shall have effect, as  if, for the words "one year", the words "five years"  were substituted."

       We have carefully examined the erstwhile Rule 10 of the  Central Excise Rules, section 11A of the Act as introduced in the  year 1980 and section 11-A of the Act after the amendment in the  year 2000. From a plain reading of Rule 10 of Central Excise  Rules, we find that the proper officer is conferred with power to  recover duties not levied or not paid or short-levied or not paid in  full or erroneously refunded to initiate recovery proceedings  within six months from the relevant date.  However, Rule 10 of  the Central Excise Rules and Section 11-A of the Act prior to the  2000 amendment, did not say that recovery of duties  not levied  or not paid or short-levied or not paid in full or erroneously  refunded could be done even where the classification of the  goods was  approved by the Department.                   Section 11A of the Act as it stands today, however, confers  powers not on the ’proper officer’ but on a Central Excise Officer

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to initiate recovery proceedings when any duty of excise has not  been levied or not paid or has not been short-levied or not paid in  full or erroneously refunded  whether or not such non-levy or  non-payment or short-levy or short-payment or erroneous refund,  as the case maybe, was on the basis of any approval etc., relating  to the rate of duty on or  valuation of excise goods within one  year from the relevant date.                   Again,  from a comparative reading of erstwhile Rule 10 of  the Central Excise Rules, section 11-A prior to its amendment of  the year 2000, it is pellucid that by the introduction of section  11A of the Act in the year 1980, a central excise officer, instead  of proper officer as indicated in erstwhile Rule 10, has been  conferred with power to initiate proceedings for recovery of duty  which has not been levied or paid or short-levied or not paid in  full or has been erroneously refunded.  The conferment of power  to initiate a recovery proceeding on the Central Excise Officer  instead of proper officer was vested only on the introduction of  Section 11A of the Act. No substantial change was made by the  Legislature from Rule 10 excepting  the changes already noticed  above.                   By the 2000 amendment in section 11-A of the Act  Legislature thought it fit to extend the power of the Central  Excise Officer to initiate proceedings under section 11-A of the  Act even where any duty of excise has not been levied or paid or  has been short-levied or short-paid or erroneously refunded  whether or not such non-levy or non-payment, short-levy or  short-payment or erroneous refund, as the case may be, was on  the basis of approval of the classification list supplied by the  assessee from time to time.   That apart, the present section 11-A  of the Act also fixes the period of limitation for initiating a  recovery proceeding within one year from the relevant date  which was six months under the erstwhile Rule 10 of the Central  Excise Rules and section 11-A prior to the 2000 amendment.   However, the amendment with respect to change in limitation  period from "six months" to "one year" was made effective from  12.5.2000.   Therefore, this amendment is not relevant for the  purpose of this case.                                     Let us now look into the proviso of Section 11A of the Act  as it stands now. It clearly says that where any duty of excise has  not been levied or paid or has been short-levied or short-paid or  erroneously refunded by reasons of fraud, collusion or any  willful misstatement or suppression of facts or contravention of  any of the provisions of this Act or of the Rules made thereunder  with intent to evade payment of duty by such person, the  provisions of this sub-section shall have effect as if for the words  ’one year’ the words ’five years’ were substituted.                   A bare reading of the provisions made under Section 11-A  (1) together with the proviso to it, it is abundantly clear that  ordinarily notice to show cause has to be issued within one year  from the relevant date.  However, in order to attract proviso to  section 11-A of the Act, that is to say, for extended period of  limitation within 5 years from the relevant date, it is necessary to  be satisfied that the non-levy, short-levy, or erroneous refund has  occurred on account of either of the following:-                 (1) fraud,                 (2) collusion,                 (3) willful misstatement or suppression of facts,                 (4) contravention of the Excise Act or Rules with an                         intent to evade payment of duty.                  So far as the present case is concerned, we shall keep it in

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our mind that the present case concerns only with "suppression  of facts".    Statement of Objects and Reasons for amending  Section 11-A would be necessary to refer at this stage which is as  follows:

"Clause 106 seeks to validate certain action taken  under section 11-A of the Central Excise Act with  retrospective effect from 17th November 1980, so as to  prescribe that the notices issued under the said section  for non-recovery or short-recovery or erroneous refund  of duties for a period of six months or five years in  certain situations will prevail notwithstanding any  approval, acceptance or assessment of duty under the  provisions of the Central Excise Rules."

       If we read the statement of Objects and Reasons for such  amendment, it is again abundantly clear that the amendment was  to be made with retrospective effect from 17th November 1980 so  as to prescribe that the notices issued under the said section for  non-recovery or short-recovery or erroneous refund of duties for  a period of 6 months or 5 years in certain situations will prevail  notwithstanding any approval under the provisions of the Central  Excise Rules.   As noted herein earlier, the amendment with  respect to change in limitation period from "six months" to "one  year" was made effective only from 12.5.2000.                    

       As discussed herein earlier, the changes made by the  Legislature through the amendment in section 11-A of the Act  was to confer power on the Central Excise Officer to initiate a  recovery proceeding under section 11-A of the Act irrespective  of the fact that the department had approved the classification list  supplied by the assessee from time to time.   This amendment  was brought in order to negate certain decisions of this Court and  also High Courts in India saying that it would not be open to the  Central Excise Officer to initiate a recovery proceeding under  section 11-A of the Act,  if the classification lists supplied by the  assessee were approved by the department from time to time.         As noted herein earlier, the erstwhile Rule 10 of the Central  Excise Rules and section 11-A prior to the 2000 amendment did  not postulate that, in cases of approval by the Department,  a  proceeding for recovery of duties, for non-levy or non-payment,  short-levy or short-payment or erroneous refund, could be  initiated within six months or one year or five years, as the case  may be, from the relevant date but it is evident that by the  amendment in section 11A of the Act in the year 2000, in cases  of approval also of the classification lists supplied by the  assessee and accepted by the department from time to time, it   would be open to the Central Excise Officer to initiate  a  recovery proceeding against the assessee under section 11A of  the Act within six months or one year or five years, as the case  may be,  from the relevant date. That being the position, we are,  therefore, of the view that in spite of some decisions of this Court  or other High Courts of India holding that a recovery proceeding  under section 11A of the Act could not be initiated for recovery  of duties when the classification lists supplied by the Assessee  were approved by the Department from time to time, due to the  2000 amendment in section 11-A, recovery proceedings can now  be initiated even when the classification lists supplied by the  assessee were approved by the department from time to time.  In  the case of Collector of Central Excise, Baroda vs. Cotspun  Ltd [1999 (113) ELT 353 (SC)], it was held that the levy of  excise duty on the basis of an approved classification list is not a  short-levy and therefore, differential duty cannot be recovered on  the ground that it was a short levy and therefore, the erstwhile

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Rule 10 of the Central Excise Rules or section 11-A of the Act  (prior to the 2000 amendment) had no application. This  Constitution Bench decision of this Court was, however,  concerned with the erstwhile Rule 10 of the Central Excise Rules  and section 11-A of the Act prior to the 2000 amendment. After  the amendment in section 11-A in 2000, it can be said that the  approval of the classification list supplied by the assessee cannot  take away the conferment of right on the Central Excise Officer  to initiate a proceeding for recovery of duties not-levied or paid  or short-levied or short-paid or erroneously refunded within six  months or one year or five years, as the case may be, from the  relevant date.            In Cotspun Ltd., (supra), we also find that this Court held  that when the classification list had been approved by the  Department, it remained valid and correct until its approval was  challenged. If differential duty had to be recovered upon such  successful challenge to classification by the Department, the  demand would be prospective from the date of show cause  notice. It is further evident from Cotspun Ltd’s case (supra) that  there was no retrospectivity to the revision of classification list.  By the time, this landmark decision was rendered by this Court,  the classification list system had changed to classification  declaration system where approval was no longer required.  Subsequently, in the Finance Act, 2000, the Parliament  retrospectively validated actions taken under section 11A of the  Act so as to overcome the decision insofar as past and concluded  proceedings were concerned. Therefore, consequent to the  retrospective amendment, the view that classification already  settled due to attaining of finality cannot be disturbed is no  longer valid law.          In view of the decision in Cotspun Ltd’s case (supra)  Section 11-A by Act No. 10 of 2000 was amended with  retrospective effect from 17.11.1980.  The vires  of the aforesaid  amendment was, however, challenged. In a recent decision by  this Court in the case of  Easland Combines, Coimbatore vs.  Collector of Central Excise, Coimbatore      [2003 (3) SCC  410],  this Court has upheld the validity of the amendment and  also held that on account of such amendment, the decision in   Cotspun Ltd’s case (supra) has ceased to be a good law.  However, another two-Judges Bench decision of this Court took  a contrary view and held that the amendment had not altered the  basis of the judgment in Cotspun Ltd’s case (supra) and on a  reference from that Bench, the matter came up for consideration  in the case of ITW Signode India Ltd., vs. Collector of Central  Excise [2004 (3) SCC 48], before a three-Judge Bench. In that  decision, the amendment was not found to be ultra vires of the  Constitution and it held that the amended section 11A of the Act  is a valid piece of legislation.          On behalf of the Appellant, learned counsel Shri V.  Sridharan had drawn our attention to proviso to section 11A of  the Act which has already been noted herein earlier and contend  ed that extended period of limitation as mentioned in proviso to  section 11A of the Act in the facts of this case could not be  attracted and the Central Excise Officer could not invoke proviso  to section 11A of the Act. Before we examine this submission of  the learned counsel for the appellant, we must note that the  CEGAT in the impugned order held that the Central Excise  Officer in the facts of this case was entitled to invoke extended  period of limitation within the meaning of section 11A of the Act  as there was "suppression of facts" while supplying the  classification list. As noted herein earlier, proviso  to section 11A  clearly shows that where any duty of excise has not been levied  or paid or has been short-levied or short-paid or erroneously  refunded by reason of fraud, collusion or any willful  misstatement or suppression of facts or contravention of any of

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the provisions of the Act or of the Rules made thereunder, as the  case may be, to evade payment of duty by such person, the  Central Excise Officer would be entitled to invoke proviso to  section 11A of the Act,  that is to say, extended period of  limitation can be taken advantage of by him.          As noted herein earlier, from the facts of the present case,  we find that the only question that arose before the CEGAT or  the Commissioner was whether there was any "suppression of  facts" for which the authorities were entitled to invoke proviso to  Section 11A of the Act.          As noted herein earlier, the Commissioner while  adjudicating the show cause notice confirmed the duty demand  on goods found short and also imposed a penalty of Rs.10,000/-  on the assessee but he dropped the rest of the proceedings on the  ground that there was no "suppression of facts" on the part of the  appellant herein and accordingly extended period of limitation  was found by him not to be available to the department under   the proviso to section 11A of the Act. In appeal, CEGAT,  however, as noted herein earlier, reversed this finding of the  Commissioner and found "suppression of facts" from the  materials on record.     If CEGAT was justified in holding that  there was "suppression of facts" by the appellant either regarding  their method of process of the product in question and  applicability of  different classification lists, then certainly  CEGAT was correct in holding that extended period of limitation  under proviso to section 11-A of the Act could be applied in the  facts and circumstances of the case.   In that event, this Court  would not be in a position to interfere with the order impugned in  this appeal.                                                             Therefore, let us now examine whether CEGAT was  justified in holding that there was "suppression of facts" in the  matter of disclosure of manufacturing process or applicability of  the classification lists supplied by the appellant or not.   It is seen  that Revenue alleged that the appellant had never disclosed to it  that they were carrying on process of notching, slitting,  punching, slotting etc. on rubber profiles and if they had done so  it would amount to "further working" thereby rendering the  products classifiable under sub-heading 4016.19 and not  classifiable under sub-heading 4008.29.  It was also the case of  the Revenue that these operations came to the knowledge of the  Revenue  only when an investigation commenced in the present  matter by the Directorate General of Anti Evasion which resulted  in the issue of the show-cause notice dated 19th October, 1995.          In the impugned order, CEGAT on perusal of the  correspondence between the appellant and the department was  unable to find any disclosure in writing by the appellant with  respect to post-forming processes like notching, drilling etc.  From the materials on record which were produced before the  authorities and also from the orders of the CEGAT  and the  Commissioner, it can be seen that the department had the  opportunity to inspect the products of the appellants and in fact,  the factory of the appellants was inspected by them.   It may be  true that the appellants might not have disclosed the post-forming  process in detail but from the correspondence and other materials  on record, it cannot be conceived that the authorities were not  aware of the facts as,  we gather from the materials on record,  admittedly, samples were collected by the Department and even  after the samples were collected and inspected, classification as  supplied by the appellant in respect of the products in question  was approved by them.            Further more, it is also evident from the record that the  flow-chart of manufacturing process which was submitted to the  Superintendent of Central Excise, Rampur on 17.5.1990 clearly  mentioned  the fact of post forming process on the rubber [See  page 15 of the Order of CEGAT]. The CEGAT in its order has

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also recognized the fact of collection of some relevant samples  by the excise authorities on 25.9.1985 and 22.1.1988. [See  paragraphs 7.1 & Page 14 of the Order of CEGAT].  

       In this view of the matter, we are unable to persuade  ourselves to agree with the finding of the CEGAT as admittedly,  the products of the appellant were inspected from time to time  and the department was aware of the manufacturing process of  the products although the appellant might not have disclosed the  post forming process in detail.

       In Tata Iron & Steel Co. Ltd. vs. Union of India & Ors  [1988 (35) ELT 605 (SC)], this Court held that when the  classification list continued  to have been approved regularly by  the department, it could not be said that the manufacturer was  guilty of "suppression of facts".  As noted herein earlier, we have  also concluded that the classification lists supplied by the  appellant were duly approved from time to time regularly by the  excise authorities and only in the year 1995, the department  found that there was "suppression of facts" in the matter of post  forming manufacturing process of the products in question.  Further more, in view of our discussion made herein earlier, that  the department has had the opportunities to inspect the products  of the appellant from time to time and, in fact, had inspected the  products of the appellant.   Classification lists supplied by the  appellant were duly approved and in view of the admitted fact  that the flow-chart of manufacturing process submitted to the  Superintendent of Central Excise on  17.5.1990 clearly  mentioned the fact of post-forming process on the rubber, the  finding on "suppression of facts" of the CEGAT cannot be  approved by us. This Court in the case of Pushpam  Pharmaceutical Company vs. Collector of Central Excise,  Bombay [1995 Supp (3) SCC 462], while dealing with the  meaning of the expression "suppression of facts"  in proviso to  section 11A of the Act held that the term must be  construed  strictly,  it does not mean any omission and the act must be  deliberate and willful to evade payment of duty. The Court,  further, held : -

"In taxation, it ("suppression of facts") can have only  one meaning that the correct information was not  disclosed  deliberately to escape payment of duty.  Where facts are known to both the parties the omission  by one to do what he might have done and not that he  must have done, does not render it suppression."

       Relying on the aforesaid observations of this Court in the  case of  Pushpam Pharmaceutical Co.  Vs. Collector of Central  Excise, Bombay [1995 Suppl. (3) SCC 462], we find that  "suppression of facts" can have  only one meaning that the  correct information was not disclosed deliberately to evade  payment of duty, when facts were known to both the parties, the  omission by one to do what he might have done not that he must  have done would not render it suppression.  It is settled law that  mere failure to declare does not amount to willful suppression.  There must be some positive act from the side of the assessee to  find willful suppression.  Therefore, in view of our findings made  herein above that there was no deliberate intention on the part of  the appellant not to disclose the correct information or to evade  payment of duty, it was not open to the Central Excise Officer to  proceed to recover duties in the manner indicated in proviso to  section 11A of the Act.   We are, therefore, of the firm opinion  that where facts were known to both the parties, as in the instant  case, it was not open to the CEGAT to come to a conclusion that  the appellant was guilty of "suppression of facts".  In Densons

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Pultretaknik  vs. Collector of Central Excise [2003 (11) SCC  390], this Court held that mere classification under a different  sub-heading by the manufacturer cannot be said to be willful  misstatement or "suppression of facts".   This view was also  reiterated by this Court in Collector of Central Excise, Baroda,  vs. LMP Precision Engg.Co.Ltd. [2004 (9) SCC 703]

           However, in the case of LMP Precision Engg. Co. Ltd.  (supra), this Court came to the conclusion that the manufacturer  was guilty of "suppression of facts". In that decision,   manufacturer did not make any attempt to describe the products  while seeking an approval of classification list  and in that  background of facts, it was held that it amounted to "suppression  of facts"  and therefore, excise authorities were entitled to invoke  proviso to section 11A of the Act. It also appears from that  decision that this Court also held that if any classification was  due to mis-interpretation of the classification list, suppression of  facts could not be alleged. From this judgment, it is therefore  clear that since the excise authorities had collected samples of the  products manufactured by the appellant and inspected the  products and  the relevant facts were very much in the knowledge  of the excise authorities and nothing could be shown by the  excise authorities that there was any deliberate attempt of non- disclosure to escape duty, no claim as to "suppression of facts"  could be entertained for the purpose of invoking the extended  period of limitation within the meaning of proviso to section 11A  of the Act.  

       Similarly, in the case of Collector Central Excise,  Jamshedpur  Vs.  Dabur India Ltd., [2005 (121) ECR 129  (SC)], this Court held that  the extended period of limitation was  not available to the Department as classification lists filed by the  Assessee were duly approved by the authorities from time to  time.  In that decision this Court followed its earlier judgment in  O.K. Play (India) Ltd., vs. Collector of Central Excise, Delhi- III, (Gurgaon) [2005 (66) RLT 657 (SC)], held that in cases  where classification lists filed by the Assessee were duly  approved, the extended period of limitation would not be  available to the Department.  

       For the reasons aforesaid, we are of the view that the  CEGAT was not justified in holding that the extended period of  limitation would be available to the Department for initiating the  recovery proceedings under section 11A of the Act on a finding  that there was suppression of facts by the appellant. Accordingly,   it was not open to the excise authorities to invoke proviso to  section 11A of the Act and therefore, the demand of the Revenue  must be restricted to six months prior to the issue of notice dated  19.10.1995 instead of five years. In view of this conclusion, it is  not necessary for us to consider the question of applicability of  the classification lists namely of 4008.29 and 4016.19 and the  question  of MODVAT facilities. Accordingly, in our opinion,  CEGAT came to a wrong conclusion for wrong reasons and  therefore, we allow this appeal and set aside the judgment and  order of the CEGAT and restore the order of the Commissioner.          There will be no order as to costs in this appeal.