TMI Blog2013 (11) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... duty has not already been paid, along with interest, the provisions of Section 11A and Section 11AB of Central Excise Act, 1944 shall apply mutatis mutandis for effecting such recovery. It may be noted that provisions of Section 11AC has not been made applicable under Rule 6 or any other Rule of said Rules, 2001. As such, no penalty can be imposed upon the assessee. - After having seen Rule 6 or the other provisions of said Rules, 2001, we find that provisions of Section 11AC has not been made applicable. As such, we set aside the penalty of ₹ 2,96,881/- imposed upon the assessee. - Decided against Revenue. - E/3863-3864/2005-EX(DB) and Cross Objection No. E/CO/117/2006-EX(DB) - Final Order Nos. A/58696-58697/2013-EX(DB) - Dated:- 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds maintained by the assessee. A view was entertained that the assessee had misutilised the said facility inasmuch as they have not been able to show the utilization of the 151 Kl of ULSD/HSD involving duty of ₹ 2,96,881/-. The assessee deposited the said duty vide TR-6 challan dated 17-4-2004. 5. On the basis of further investigation, Revenue entertained a view that inasmuch as ULSD/HSD is a material not used directly in the manufacture of export goods but the same is used only for generation of electricity, which is further used for manufacture of excisable goods, the benefit under the said Rules read with Notification No. 43/2001-C.E. were not available to them. Accordingly, proceedings were initiated by way of issuance of show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r manufacture of fertilizer. He also observed that such ULSD/HSD was procured by the appellant after filing an application before the jurisdictional Central Excise authorities wherein it was categorically mentioned that same was meant for their final product terry towel and made-ups, which were to be exported. He observed that such permission was granted and it is the matter of common sense that fuel cannot be used in the manufacture of terry towel. He further observed that each consignment received by the assessee was got verified from the jurisdictional Central Excise authorities in form AR 3A and as such he held that no duty can be confirmed against the appellant on the said ground. He accordingly set aside the confirmation of demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court held that diesel used for generation of power through which plant and machinery operated has to be held as a raw material in the process of manufacture of final product i.e. polyester yarn and the benefit of Section 10(1) of Rajasthan Sales Tax Act, 1984 would be available. 8. Inasmuch as the issue stands decided, we find no reason to interfere in the impugned order of Commissioner (Appeals) and accordingly reject the Revenue s appeal. 9. It is further seen that Commissioner (Appeals) has confirmed the demand of duty of ₹ 2,96,881/- in respect of that quantity of fuel, which the appellant has not been able to show as having been utilized in terms of notifica tion or Rules, 2001. He has also imposed penalty of identical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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