2011 (5) TMI 554

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....al market by discharging duty at the rate of 12% advalorem as per Notification No. 14/2002-CE dated 1.3.2002. The benefit of concessional rate of duty of 12% was applicable only on satisfaction of Condition No. 5 of the Table annexed to the Notification read with Explanation VII clause (2) of the Notification. As duty liability had not been discharged on yarn, the Department alleged that the payment of 12% was not payment of appropriate duty and that the assessees were required to discharge duty @ 24% and on this basis notice dated 12.8.2003 was issued proposing recovery of differential duty of Rs.3,30,319/- on the end-bits of fabrics and also proposing penalty. The demand was confirmed by the Deputy Commissioner who also imposed equal amou....

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....ter referred to as the "aggregate duty") as is in excess of an amount calculated at the rate specified in the corresponding entry in column (4) of the said Table, subject to the relevant conditions specified below the said Table, and referred to in the corresponding entry in column (5) of the said Table: Provided that the aggregate duty of sixteen per cent, ad valorem leviable on the excisable goods specified in Sl. No. 9 of the Table below shall be apportioned equally between the duty leviable under the said Central Excise Act and the said Additional Duties of Excise (Goods of Special Importance) Act: Provided further that -  (a) during the period commencing from the 1st day of March, 2002, and ending on the 28th day of February, 2....

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....connection he relies upon the decision of the Tribunal in Maneesh Pharmaceuticals P. Ltd. Vs. CCE, Mumbai - 2004 (163) ELT 365. 4. Opposing the prayer for setting aside the demand and penalty, learned SDR submits that Explanation II will not come to the rescue of the assessees in the present situation where there is no dispute that the yarn procured by the assessees did not discharge duty liability and that Explanation II will be attracted only in the case of duty paid goods for which an assessee may not be in a position to produce duty paying documents. He submits that since the yarn procured by the assessees under bond was admittedly without payment of duty, Condition No. 5 has not been satisfied and therefore the benefit of concessional....

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....ct quantity of yarn procured without payment of duty for the manufacture of fabrics, in order to enable the Department to determine as to whether the benefit of concessional rate of duty under the notification was admissible or not, we agree with the authorities below that the extended period of limitation is available to the Department and that the demand is not time-barred. 6. In the result, we uphold the impugned order and reject the appeal. (Dictated and pronounced in open court)  (Dr. Chittaranjan Satapathy) (Jyoti Balasundaram) Technical Member                         Vice President Rex Per Dr. Chittaranjan Satapathy I agree with the order recorded above for the a....