2017 (4) TMI 1020

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....le to CETA, 1985. Filgrastim is exempt from payment of central excise duty by way of Notn No.12/2012-CE dated 17.03.2012 vide Sl. No.108 as the same was specified under list 4 of S.No.42 of Customs Notn No.21/2002-Customs dated 1.3.2002 as amended. The product Pegfilgrastim was launched on 26.03.2011 and as it was not covered under list 4 of Sl.No. 42 of Notn No.21/2002-Cus dated 1.3.2002 as amended, appellant had paid duty during the period march, 2011 to December, 2012. The cenvat credit on inputs and input services pertaining to this product Pegfilgrastim was availed. After receiving clarification from their technical staff to the effect that Pegfilgrastim is manufactured by the identical process of manufacturing filgrastim, only differe....

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....od March 2011 to December 2012. On realising that the said product does not attract excise duty, on 05.09.2012 the appellant issued a letter to the Deputy Commissioner of the concerned division. In the said letter the appellant had requested for clarification whether the appellant is required to pay duty or not. It was also stated by the appellant that they are availing credit on inputs and input services. The appellant did not receive any response/clarification from the department. A further letter was issued dated 16.11.2012 again requesting to inform the appellant whether duty has to be paid on the product Pegfilgrastim. It is submitted by the counsel that inspite of these two letters the department failed to give any clarification on th....

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.... sustain. It is also argued by the Ld. Counsel that as the appellant has paid duty on the exempted products even though the credit has been availed the demand cannot be raised for the reason that the entire situation is revenue neutral. To canvass this argument he has relied upon the judgment in the case of Ajmeer Food Products Pvt Ltd., Vs CCE, Jaipur [2015 (317) ELT 656 (Tri-Del)]. 3. Against this, the Ld. AR Sh. Arun Kumar reiterated the findings in the impugned order. He adverted to paragraph 6 of the Order-in-Original and submitted that in Order-in-Original as well as paragraph 7 of the impugned order the authorities below have considered the contentions put forward by the appellant regarding the extended period of limitation. It is ....

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.... continued to pay duty and avail credit till December, 2012. They have stopped payment of duty only from January 2013. It has taken another 8 months for the department to wakeup from their peaceful slumber and issue a letter calling for the details of the credit availed. The department has no case that the appellants did not furnish details when required for. On the background presented by the case, I am able to conclude that the appellant cannot be saddled with allegation of suppression of facts with intend to evade payment of duty. Therefore, I am of the view that the show cause notice issued invoking the extended period of limitation cannot sustain. However, some part of the period covered in the show cause notice lies within the normal ....