TMI Blog2001 (5) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... the company are against the same order of the Commissioner imposing penalties on them under Rule 209A of the Central Excise Rules. 3. We have carefully gone through the records. The company is engaged in the manufacture of 100% cotton fabrics falling under Chapter 52 of the Central Excise Tariff Act s Schedule and interlining cotton fabrics falling under Chapter 59 of the Schedule. During the material period, they cleared bleached cotton fabrics within the factory and used the same in the manufacture of interlining cotton fabrics without maintaining any RG 1 register in respect of production of bleached cotton fabrics or any RG 23A Parts I and II register, and without filing any RT 12 return in respect of the said goods cleared for captive consumption and without payment of duty. The Department issued a show cause notice dated 23-7-1999 to the company seeking recovery of the aforesaid amount of additional duty of excise on the cotton bleached fabrics captively consumed in the manufacture of the final product, namely, interlining cotton fabrics for the aforesaid period by invoking the extended period of limitation under the proviso to Section 11A(1) of the Act. The show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e knowledge of the manufacturing process, it was not entitled to allege suppression of facts against the company. It is the further contention of the learned Counsel for the appellants that the Department had, by show cause notice dated 29-9-1998, demanded additional duty of excise on cotton bleached fabrics manufactured and captively consumed in the factory for production of the final product during the period March, 1998 to May, 1998 on the basis of allegations materially identical to the allegations contained in the show cause notice in question in the present appeals, and therefore the Department could not have raised the same allegations of suppression of facts, intention for evasion of duty etc. against the company in the subsequent notice issued for the prior period of August, 1996 to February, 1998. The very issuance of the earlier show cause notice containing identical allegations by itself indicates the knowledge of the Department about the manufacturing activity and matters connected therewith of the company. Therefore, the subsequent show cause notice would not be sustainable under the proviso to Section 11A(1) of the Act. In support of this submission, the learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional duty of excise on cotton bleached fabrics manufactured and captively consumed for the manufacture of the final product. The notification, which was issued under Section 5A of the Central Excise and Salt Act, 1944, and not under any of the provisions of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, granted exemption from the whole of the duty of excise specified in the Schedule to the CETA and did not grant any such exemption in respect of the additional duty of excise. The provisions of the notification being clear and unambiguous, there was hardly any justification for the appellants to carry an impression that the benefit of the notification was also available to additional duty of excise on the cotton bleached fabrics. The learned Departmental Representative has therefore justified the impugned order of the Commissioner rejecting the assessees plea of limitation. He has further sought to distinguish the case law cited by the learned Counsel for the appellants. 6. Carefully examined the rival submissions. We note that the appellants have no prima facie case on merits, nor has the Counsel for the appellants pressed any such case before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n occasioned by suppression of facts, or any other reason as specified under clause (3). The learned Counsel has submitted that if sub-rule (2) of Rule 57E of the Rules is applied to the case of the present assessees, about half of the demand for duty will stand offset by the benefit of Modvat credit of the duty payable on cotton bleached fabrics manufactured and captively consumed till the time of coming into force of Rule 57E (3) of the Rules. We find some force in this plea. We also find that the learned Counsel has been able to draw support from the Tribunal s decisions in cases of S.L. Packaging Ltd. v. C.C.E. (supra) and the Larger Bench decision in Jai Yuhshin Ltd. v. C.C.E. (supra). 7. In Jay Yuhshin Ltd. v. C.C.E. case the Larger Bench was considering an issue referred by regular Bench and that issue was stated in para 2 of the order of the Larger Bench extracted below : The referral order had noted that there was a conflict of views between different Benches of this Tribunal on the question raised before the Bench, viz., that in a case where the Department alleges intention to evade payment of duty, whether it was sufficient if the assessee shows that he had an alter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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