2014 (9) TMI 766

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....as to why the appellant is eligible for the exemption under Notification No. 5/2006-C.E., dated 1-3-2006, since we are considering only the stay applications and a prima facie view has to be taken as regards the liability, we do not propose to go into entire details of the submissions but give consolidated view for the submissions made and our conclusion thereon. 2. Duty demand of Rs. 141,37,26,577/- has been confirmed taking the exemption under Notification No. 5/2006 to the appellants during the period from January, 2007 to 31-3-2011. Besides demanding duty with interest, penalty equal to the duty amount has been imposed on the first appellant Hutti Gold Mines Company Ltd. (HGMCL) and penalties have also been imposed on Shri D.Y. ....

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....did not exist at the initial stage in the instant case. ■       Such gold bars are chargeable to duty inasmuch as they are not entitled for exemption from payment of duty under Sl. No. 21 of Notification No. 5/2006-C.E., dated 1-3-2006. 3. Sl. No. 21 of the table in Notification No. 5/2006 covers the product in dispute before us. According to this Sl. No., primary gold converted with the aid of power from any form of gold attracts 'nil' rate of duty. There is an explanation below the entry which reads as under : Explanation. - For the purposes of the exemption, "primary gold" means gold in any unfinished or semi-finished form and includes ingots, bars, blocks, slabs, billets, shots, pellets,....

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....stating that they are required to pay duty under Sl. No. 21A which according to the appellants would show that the appellant was not liable to pay duty till Sl. No. 21 was amended w.e.f. 1-4-2011. In our opinion we need not have to go into all these aspects since what is required to be interpreted is whether any form of gold would include gold ore or not according to Tariff Heading 71.08. If we go through this heading, the heading reads gold (including gold plated with platinum) unwrought or in semi-manufactured forms, or in powder form. Gold ore on the other hand is covered under Chapter 26 of Central Excise Tariff Act 1985. Chapter Heading 26 covers precious metal ores and concentrates. Gold ores and concentrates are listed under 2616 90 ....

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....ontests the notification that any form of gold would include gold ore also, even though it may not be entirely acceptable, yet in view of the letter from DGCEI in this case, such a view taken has to be given the benefit of doubt. Under these circumstances, we consider that the issue as regards invocation of extended period requires a more detailed consideration and at this stage, we take a view that the appellants have made out a prima facie case that extended period is not invocable. It is necessary for us to mention that the learned AR relied upon the decision in the case of Birla Copper Ltd. v. CCE, Vadodara [2007 (207) E.L.T. 385 (Tri.-Mum.)] but in our opinion the decision is not applicable to the facts of this case. In any case we hav....