2008 (1) TMI 145

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....630/1999] against an adverse portion of the Commissioner's order and the same was disposed of by this Bench as per Final Order No. 909/2006 dated 22.9.2006, wherein the duty demand on waste and scrap of plastics for the period 6.9.1995 to 16.1.1997 was set aside on the ground of limitation after holding that the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act was not invocable against the assessee. In the said order, we also vacated the penalty imposed on the assessee by the Commissioner under Rule 173Q of the Central Excise Rules, 1944. 2. After examining the records and hearing both sides, we note that, in the impugned order, learned Commissioner dropped demand of duty of Rs.1,31,745/- after ....

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....a brief period [1.3.94 to 5.9.95] that a similar provision was missing in the relevant Notification [No.15/94-CE]. Learned consultant submits that this void was inconsistent with the Governmental policy and that, upon having realized their mistake, the Government consciously introduced Sl. No. 3A in Notification No. 15/94-CE and therefore this amendment should be treated as clarificatory, with retrospective effect. In this connection, learned consultant relies on the decision of the apex Court in W.P.I.L. Ltd. Vs. CCE, Meerut [2005 (181) ELT 359 (SC)] wherein an omission in Notification No. 46/94-CE was found to have been made good through insertion of entry 4(a) therein by amending Notification No. 95/94-CE. The entry so inserted in the ex....

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....-CE can be considered to be clarificatory and can be given retrospective effect, in which event the respondents cannot be asked to pay duty on the plastic materials for the period 7.7.94 to 5.9.95. In other words, the demand of duty of Rs.1,31,745/- was rightly dropped by the lower authority. 3. The appellant has also argued that a penalty under Section 11AC of the Central Excise Act should have been imposed on the assessee for the period after 28.9.1996. In other words, an amount equal to the duty recoverable from the assessee for the period 28.9.1996 to 16.1.1997 should have been imposed on them. This claim can no longer be sustained inasmuch as the very duty liability was negatived by this Tribunal in Final Order No. 909/200, wherein ....