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2011 (6) TMI 119 - CESTAT, AHMEDABADLimitation - Find that the appellant have not challenged the findings on facts arrived at by the lower authorities that the goods were actually cleared in the month of March 2002 and the bills were raised in February 2002, so as to evade payment of duty, which was introduced with effect from 01.3.2002 - As such, the activities of the appellants were clandestine in nature, in which case the time-bar will not apply, as held by the Hon ble Gujarat High Court in the case of Commissioner of Central Excise Surat vs. M/s. Neminath Fabrics Pvt. Limited [2010 -TMI - 201472 - GUJARAT HIGH COURT] As regards the appellant s claim of cum-duty price, we note that it is well settled law that benefit of cum-duty is required to be extended even in the cases of clandestine removal - The reference in this regard can be made to the Larger Bench decision in the case of Srichakra Tyres Limited vs. CCE, Madra (1999 -TMI - 48754 - CEGAT, NEW DELHI)- As such, are of the view that the demand is required to be re-calculated by extending the benefit of cum-duty price. Penalty - As per the Hon ble Supreme Court in the case of Dharmendra Textile Processors (2008 -TMI - 31520 - SUPREME COURT), the appellants are liable to penalty under said Section 11AC equivalent to the duty confirmed against them.
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