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2010 (10) TMI 399 - AT - Central ExciseExemption - whether the appellant is eligible for the benefit of concessional rate of duty in respect of EBMS cleared by them - This issue had come up before the Tribunal in the case of same assessee and while considering the application for stay, this Tribunal held that, duty payment by the due date as per Rule 8 of the Central Excise Rules, 2002 would be sufficient and goods have to be treated as duty paid though the same was not paid at the time when it was cleared and used - Held that it cannot be said that the MS used in the manufacture of EBMS is to be treated as non-duty paid subject to the condition that appellants have discharged the liability before the due date for payment of duty on said MS - Therefore, the Commissioner’s order that appellants are not eligible of exemption notification, cannot be sustained. Limitation - Demand and penalty - There is no mention about the invocation of extended period in the show cause notice and whether there was any suppression of fact/mis-declaration/fraud or collusion and there is no discussion available in the show cause notice or in the order in original - The demand is for the period April 2003 to June 2003, whereas the show cause notice was issued on 19-4-2005 - Extended period is not invoked in the show cause notice or in the order in original and hence the demand cannot be confirmed. Further, no penalty has been imposed under Section 11AC of Central Excise Act, 1944 - Thus, the demand is required to be set-aside. Refund claim - where the sale price of end product is controlled by the Government, assumption that assessee would have passed on the incidence of duty to the customer, is neither reasonable nor logical - Under these circumstances find that the appellant is eligible for the refund claimed by them.
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