TMI Blog2012 (12) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of this case and, therefore, there is no escape from the fact that the appellant was manufacturing mineral water chargeable to duty of excise under the appropriate sub-heading of Heading 2201. Apparently, the manufacturing process was not disclosed by the appellant voluntarily to the department at any stage. The internal auditors of the department visited the factory and gathered the information in May 2009. The show cause notice in this case was issued in 2010 invoking, apparently rightly so, the extended period of limitation under the proviso to Section 11 A (1) of the Central Excise Act. The plea of bona fide belief is itself untenable, inasmuch as the law prevailing during the material period clearly required payment of duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) The clearances of ready mixed concrete were not added to the clearances of the mineral water to get the aggregate value of clearances for the year 2004 - 2005 in terms of the relevant condition of notification No. 8/03-CE as amended. As per the said condition, the clearances of ready mixed concrete at nil rate of duty were also liable to be included in the gross value of clearances of the unit which manufactured and cleared mineral water. On this basis, in 2004 -2005, the aggregate value exceeded the prescribed limit of Rs. Four Crores for SSI exemption. In other words, in the year 2004 - 2005, the appellant was not eligible for SSI exemption and consequently they cannot claim this benefit for the subsequent years 2005 - 2006 to 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 of the First Schedule to the Central Excise Tariff Act, amounted to manufacture of mineral water and hence the appellant cannot escape their duty liability. It is further submitted that the above process was suppressed before the department and that the appellant cannot take refuge under the premise that the auditors of the department gathered the relevant information in May 2009. In this manner, the Ld. Jt. Commr. (AR) has justified the invocation of the larger period of limitation in this case. 4. After considering the submissions, we find that the appellant has shifted focus from excisability, classification etc. to limitation for the present purpose. We have to consider this issue at this stage. The statement of the Microbiologist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tune of Rs. 98 lakhs. The appellant is claiming CENVAT credit to the extent of Rs. 35 lakhs. They paid an amount of Rs. 10 lakhs, which has also been appropriated. For the purpose, we shall proceed on the premise that the appellant is entitled for CENVAT credit as claimed. Taking all the facts and circumstances into account, we direct the appellant to predeposit a further amount of Rs.20 lakhs (Rupees Twenty Lakhs only) within four weeks and report compliance to the DR/AR on 21.01.13. DR/ AR to report to the Bench on 05.02.13. Subject to due compliance, there shall be waiver of predeposit and stay of recovery in respect of the penalty imposed on the appellant and the balance amount of duty demanded. - - TaxTMI - TMITax - Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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